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HomeMy WebLinkAbout3-9-10PLEDGE OF ALLEGIANCE ROLL CALL MOTION: To read the Resolutions by title only and waive reading the full text of the Resolutions. SUPPLEMENTAL INFORMATION FROM STAFF REGARDING AGENDA ITEMS TIME RESERVED FOR THOSE IN THE AUDIENCE WHO WISH TO ADDRESS THE PLANNING COMMISSION ON NON PUBLIC HEARING ITEMS 5 minute time limit per person. All interested persons are invited to appear at the Public Hearing and to provide evidence or testimony concerning any of the proposed items set forth below for consideration. You are hereby advised that should you desire to legally challenge any action taken by the Planning Commission with respect to the proposed item for consideration, you may be limited to raising only those issues and objections, which you or someone else raises at or prior to the time of the Public Hearing. PUBLIC HEARINGS RECOMMENDATION: Denial ARCADIA PLANNING COMMISSION AGENDA Tuesday, March 9, 2010, 7:00 P.M. Arcadia City Council Chambers 1. MODIFICATION APPLICATION NO. MC 10-03 245 W. Walnut Avenue Jean Ni on behalf of the property owner, Jingming Luo Referred by Modification Committee on February 23, 2010 The applicant is requesting a Modification to permit a 796 square -foot attic that has been converted into a third -floor within the existing residence. There is a five working day appeal period after the approval /denial of the application. Appeals are to be filed by 5:30 p.m. on Wednesday, March 17, 2010. 2. REVOCATION OF CONDITIONAL USE PERMIT NO. CUP 09 09 (RESOLUTION NO. 1801) 510 -512 E. Live Oak Ave. (between Hempstead Ave. and Lenore Ave.) Michael Hsiao (designer) Cafe Fusion Consideration of revocation of a Conditional Use Permit granted on October 27, 2009, for a 960 square -foot expansion to an existing 2,040 square -foot restaurant. The status of the permit was reviewed by the Planning Commission on February 9, 2010. RECOMMENDATION: Revocation A Resolution reflecting the decision of the Planning Commission will be presented for adoption at the next Commission meeting. There will be a five working day appeal period after the adoption of the Resolution. Any writings or documents provided to a majority of the Planning Commission members regarding any item on this agenda will be made available for public inspection in the Planning Services office at City Hall, 240 W. Huntington Dr., Arcadia, CA 91007, (626) 574 -5423. PC AGENDA 3 -9 -10 CONSENT ITEMS 3. RESOLUTION 1813 A Resolution of the Planning Commission of the City of Arcadia, California, approving Conditional Use Permit No. CUP 10 -01 to operate a tutoring center with up to 80 students within 4,313 square -feet of existing office space on the second -floor of the commercial shopping center at 1135 W. Huntington Drive. RECOMMENDATION: Adopt There is a five working day appeal period after the adoption of the Resolution. 4. RESOLUTION 1814 A Resolution of the Planning Commission of the City of Arcadia, Califomia, approving Tentative Parcel Map No. TPM 09 -08 (71182) and the renewal of Residential Mountainous Development Permit No. RM 07 -01 for the subdivision and development of an approximately 90 -acre property generally located north of the terminus of Vista Avenue and north and northwest of Canyon Road. RECOMMENDATION: Adopt There is a five working day appeal period after the adoption of the Resolution. 5. MINUTES OF FEBRUARY 23, 2010 RECOMMENDATION: Approval MATTERS FROM CITY COUNCIL PLANNING COMMISSION MODIFICATION COMMITTEE AGENDA MATTERS FROM STAFF UPCOMING AGENDA ITEMS ADJOURNMENT Any writings or documents provided to a majority of the Planning Commission members regarding any item on this agenda will be made available for public inspection in the Planning Services office at City Hall, 240 W. Huntington Dr., Arcadia, CA 91007, (626) 574 -5423. PC AGENDA 3 -9-10 PLANNING COMMISSION Pursuant to the Americans with Disabilities Act, persons with a disability who require a disability related modification or accommodation in order to participate in a meeting, including auxiliary aids or services, may request such modification or accommodation from the City Clerk at (626) 574 -5423. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting. Public Hearing Procedure 1. The public hearing is opened by the Chairman of the Planning Commission. 2. The Planning staff report is presented by staff. 3. Commissioners' questions relating to the Planning staff report may be asked and answered at this time. 4. The applicant is afforded the opportunity to address the Commission. 5. Others in favor of the proposal are afforded the opportunity to address the Commission. (LIMITED TO 5 MINUTES) 6. Those in opposition to the proposal are afforded the opportunity to address the Commission. (LIMITED TO 5 MINUTES) 7. The applicant may be afforded the opportunity for a brief rebuttal. (LIMITED TO 5 MINUTES) 8. The Commission closes the public hearing. 9. The Commission members may discuss the proposal at this time. 10. The Commission then makes a motion and acts on the proposal to either approve, approve with conditions or modifications, deny, or continue it to a specific date. 11. Following the Commission's action on Conditional Use Permits and Variances, a resolution reflecting the decision of the Planning Commission is prepared for adoption by the Commission. This is usually presented at the next Planning Commission meeting. There is a five (5) working day appeal period after the adoption of the resolution. 12. Following the Commission's action on Modifications and Design Reviews, there is a five (5) working day appeal period. 13. Following the Commission's review of Zone Changes, Text Amendments and General Plan Amendments, the Commission's comments and recommendations are forwarded to the City Council for the Council's consideration at a scheduled public hearing. 14. Following the Commission's action on Tentative Tract Maps and Tentative Parcel Maps (subdivisions) there is a ten (10) calendar day appeal period. Any writings or documents provided to a majority of the Planning Commission members regarding any item on this agenda will be made available for public inspection in the Planning Services office at City Hall, 240 W. Huntington Dr., Arcadia, CA 91007, (626) 574 -5423. PC AGENDA 3 -9 -10 March 9, 2010 TO: FROM: SUBJECT: SUMMARY Arcadia Planning Commission Jim Kasama, Community Development Administrator By: Tim Schwehr, Assistant Planner STAFF REPORT Development Services Department The applicant is requesting a Modification to permit a 796 square -foot attic that has been converted into a third -floor within the existing residence (AMC Sec. 9251.2.1) Ms. Jean Ni, on behalf of the property owner Mr. Jingming Luo, submitted Modification Application No. MC 10 -03 to permit a 796 square -foot attic that has been converted into a third -floor within the existing residence (AMC Sec. 9251.2.1). Attached are an aerial photo, vicinity map, a site plan, and photos of the subject property. It is staff's opinion that there is not adequate justification for allowing a three -story residence. The Development Services Department is recommending denial of the request, which will require that the 796 square -foot space be converted back into non living attic space, and that the stairway to the attic be removed. GENERAL INFORMATION APPLICANT: Ms. Jean Ni on behalf of the property owner Mr. Jingming Luo LOCATION: 245 W. Walnut Avenue REQUEST: A Modification to permit a 796 square -foot attic that has been converted into a third -floor within the existing residence (AMC Sec. 9251.2.1) SITE AREA: 28,560 square feet (0.65 acre) FRONTAGE: 100.55 feet along Walnut Avenue ZONING EXISTING LAND USE: The subject property is zoned R -0- 15,000, First One Family Zone and is improved with a 5,580 square -foot, two -story single family residence with a 796 square -foot attic. There are also an attached 809 square foot, four -car garage, a 525 square -foot, detached, two -car garage, a 599 square -foot, detached recreation room, a 153 square -foot patio, and a pool and spa. The residence and attached garage were built in 1989 and the other improvements were built in 1993. SURROUNDING LAND USES ZONING: The surrounding properties are developed with single family residences and are zoned R -0- 15,000. GENERAL PLAN DESIGNATION: Single Family Residential at 0 -4 dwelling units per acre PUBLIC HEARING NOTIFICATION Public hearing notices of Modification Application No. MC 10 -03 were mailed on February 25, 2010 to the property owners, tenants and occupants of those properties that are within 100 feet of the subject property; see the attached radius map. Because staff considers the proposed project exempt from the requirements of the California Environmental Quality Act (CEQA) the public hearing notice was not published in the Arcadia Weekly newspaper. BACKGROUND INFORMATION A two -story, 5,580 square -foot residence was constructed on the subject property in 1989. The residence included a 796 square -foot attic designed to accommodate storage of large items and was therefore built with a weight- bearing floor. The Building Permit for the residence states that the 796 square -foot area is an attic; a copy of the building permit is attached. At some point after final inspection of the residence by the City's Building Services and without permits, the original owner /builder of the house converted the 796 square -foot attic into livable space and added a staircase leading from the second -floor to the attic. By installing a permanent staircase to the attic, a third -story was created, which is not allowed in the R -0 zone or any residentially -zoned area in the City. Staff was not aware of the illegal conversion until earlier this year when the current owners, who purchased the house in late 2009, submitted plans to remodel the interior of the house and add a new bathroom. During an inspection, a City Building Inspector realized that the new bathroom was to be on a third floor and discovered that the attic had been converted into livable space, and that a permanent staircase had been added to access the attic. The attached photos show the front of MC 10 03 245 W. Walnut Avenue March 9, 2010 page 2 the house, the attic space being remodeled by the current owner, the stairway to the attic, and views from the attic windows. On February 10, 2010, the applicant submitted Modification Application No. MC 10 -03 to request legalization of the attic as a third floor. The request was brought before the Modification Committee at their February 23, 2010 meeting, at which time the Modification Committee referred the application to the Planning Commission. A copy of the Modification Committee Background Report is attached. REQUEST AND ANALYSIS The request is for a Modification to allow a 796 square -foot attic as a third -floor. Attached to the staff report is a letter from the property owners explaining their rationale for approval. Their main points are as follows: 1. The remodeled attic and stairs have existed for nearly 20 years, and have never caused any safety or other problems. 2. When remodeling the attic, no changes were made to the exterior of the house; only interior remodeling occurred. 3. The third -story meets the maximum height restriction of 35 -feet for when the house was constructed in 1989. The current height restriction for a 100 -foot wide lot in the R -0 zone is 30 -feet. 4. The County Tax Assessor's records included the attic as livable space because it lists the livable square- footage at the property as 7,135 square feet. This total must include not only the attic, but also the recreation room and patio. Staff is satisfied that the above information is true. However, staff does not feel that the request satisfies any of the purposes of a Modification, which are as follows: That the Modification will secure an appropriate improvement of a lot; That the Modification will prevent an unreasonable hardship; or That the Modification will promote uniformity of development. At least one of these purposes must be met to justify the allowing of a three -story residence. The City's records for this property show that no permits were ever applied for or issued for the staircase or the other changes made to the attic. That the maximum height limitation was not exceeded and no exterior changes were made to the house do not directly relate to the purposes for a Modification. MC 10 -03 245 W. Walnut Avenue March 9, 2010 page 3 CODE REQUIREMENTS Regardless of whether, or not the Modification request is approved, all City requirements are required to be complied with to the satisfaction of the Building Official, Community Development Administrator, and Fire Marshal. CEQA The request for a Modification to allow the conversion of an existing attic space into living space is categorically exempt from environmental review pursuant to the provisions of the California Environmental Quality Act (CEQA) by Section 15303 of the CEQA Guidelines. RECOMMENDATION The Development Services Department recommends denial of Modification Application No. MC 10 -03. If, however, the Planning Commission determines that the request does satisfy at least one of the purposes of a Modification and intends to approve Modification Application No. MC 10 -03, staff recommends that the approval be subject to the following conditions: 1. All City requirements regarding building and safety shall be complied with to the satisfaction of the Building Official and Fire Marshal, and any exterior changes shall be subject to design review. 2 A covenant to be drafted by the City Attorney shall be executed by the current property owner(s) and recorded in the Office of the County Recorder to require that the attic be restored to storage space and that the staircase to the attic be removed prior to the completion of any sale of the subject property by the current owner(s) or successors. The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officers, employees or agents to attack, set aside, void, or annul any approval or condition of approval of the City of Arcadia concerning this project and /or land use decision, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and /or land use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. MC 10 -03 245 W. Walnut Avenue March 9, 2010 page 4 4. Approval of MC 10 -03 shall not take effect until the property owner(s) and applicant have executed and filed the Acceptance Form available from the Development Services Department to indicate awareness and acceptance of these conditions of approval. PLANNING COMMISSION ACTION Approval If the Planning Commission intends to approve this request, the Commission should move to approve Modification No. MC 10 -03, state the determination(s) that support a finding that at least one of the following purposes is satisfied, acid that the approval is subject to the conditions set forth above, or as modified by the Commission: 1. That the Modification will secure an appropriate improvement of a lot; 2. That the Modification will prevent an unreasonable hardship; or 3. That the Modification will promote uniformity of development. Denial If the Planning Commission intends to deny this request, the Commission should move to deny Modification Application No. MC 10 -03, and state why, based on the evidence presented the project does not support any of the above purposes. If any Planning Commissioner, or other interested party has any questions or comments regarding this matter prior to the March 9 public hearing, please contact Assistant Planner, Tim Schwehr at (626) 574 -5422 or at tschwehra.ci.arcadia.ca.us. Appro Jip asama ommunity Development Administrator Attachments: Aerial Photo Vicinity Map Site Plan Photos of Subject Property 100 -foot Radius Map Building Permit Modification Committee Background Report Letter from Applicant MC 10 -03 245 W. Walnut Avenue March 9, 2010 page 5 Development Services Department Engineering Division Prepared by: R.S.Gonzalez, February 2010 Development Services Department Engineering Division Prepared by. R.S.Gonzalez, February 2010 R -0 (210) 245 W Walnut Ave MC 10-03 R0 Q LU O W 100 -foot radius map around 245 Walnut Ave. CALL FOR INSPECTION Requests for inspections should be made at least twenty -four hours in advance by telephone at 574 -5416, 8:00 A.M. 5:00 P.M. inspectors office hours are: 8:00 9:00 A.M.; 1:00 1:30 4:30 5:00 P.M. BUILDING SAFETY DIVISION 240 West Huntington Drive Arcadia, California 91006 -3104 (818) 574 -5416 245 W WALNUT AV Permit No A8801781 Status APPROVED This type Single Family Project Parcel number Group -occup /use: Owner Applicant Applicant Addr Job Address Phone number Class code Valuation Construction Permit to do YANG, SHENG -CHU TA -MING CONSTRUCTION 1039 E VALLEY BL #E SAN GABRIEL, CA 91776 245 W WALNUT AV 818 280 -0565 101 405,524 NEW 11 RMS, 5 BATHS, UTILITY, 4 CAR ATT GAR Contractor TA -MING CONSTRUCTION This type SFP Plan No. 23012 School Certification No> 332 Fee description Units Fee /unit Dwelling(Enter Square Footage)3104> Garage (Enter Square Footage)3104> Accessory Blding(Enter Sq Ft) 3104> Building Permit Fee 3104> S.M.I.P. Fee 714 -2207 Parks /Rec Tax(Enter No. Units)3104> Fees Required Total Fees: 2,413.59 5580.00 809.00 796.00 Receipt No. Date 08/26/88 Total Payments: Balance Due: rAuE 1 vF l 08/26/88 13:51 Project No AU000547 Validated by CP Inspector area: 205 Date Applied 08/26/88 Date Issued 08/26/88 Date Finaled Date To Expire: Lic. C 469457 818- 280 -0565 1.00 185.00 Fees Collected Credits Ext fee Data 2200.20 28.39 185.00 Payment 2,413.59 2,413.59 .00 ATTIC DECLARATIONS In accordance with Health Safety Code, Section 19825, all required declarations on the reverse side of this form have been properly signed and dated by the permittee. Verified by g i nature PUBLIC HEARING MC 10 -03 ARCADIA MODIFICATION COMMITTEE Tuesday, February 23, 2010 at 7:45 a.m. Arcadia City Council Chambers Conference Room Address: 245 W. Walnut Avenue Applicant: Jean Ni on behalf of the property owner Jingming Luo Request: The applicant is requesting a Modification to convert the existing 796 square -foot attic area into a third -floor within the existing residence (AMC Sec. 9251.2.1). Such request will not involve any exterior alterations. BACKGROUND The subject property is zoned R -O, First One Family Zone, and is developed with a 5,866 square -foot, two -story single family residence (includes 796 square -feet of non livable attic space) with an attached 808 square -foot four -car garage, a 525 square -foot detached two -car garage, and a 599 square -foot detached recreation room. The residence and attached garage was built in 1989, and the detached garage and recreation room were built in 1993. It is Staff's understanding that the original owners of the house converted the attic into livable space (without permits) by adding heating, lighting, carpet, several interior walls, and a permanent, fixed staircase leading from the second -floor to the attic. No exterior changes were made to the house. By converting the attic into livable space, a third -story was created, which is not allowed in the R -O zone or any single family zoned property in the City (AMC Sec. 9251.2.1). The City was not aware of the illegal conversion until earlier this year when the current owners submitted plans to remodel the interior of the house and add two new bathrooms. During an inspection of the new bathrooms, the City's Building Inspector discovered the attic had been converted into livable space, and permanent staircase had been added connecting the attic to the second floor. The applicant is seeking a Modification to permit the 796 square -foot attic as a third floor. Attached is a letter from the property owners explaining their rationale for why a Modification should be granted. The main points are as follows: 1. The remodeled attic and stairs have existed for nearly 20 years, and have never caused any safety or other problems. 2. When remodeling the attic, no changes were made to the exterior of the house. Only interior remodeling occurred. 3. The third -story meets the maximum height restriction of 35 -feet from when the house was constructed in 1989 the current height restriction for this property is 30 -feet. 4. The County Tax Assessor records incorrectly includes the attic as livable space, and lists the square- footage of the house as 7,135 square -feet rather than the correct 6,464 square -feet (first -story and second -story livable space, and 599 square -foot detached recreation room). Staff cannot support the applicant's request as there does not appear to be an adequate justification for allowing a three -story residence on a single family zoned property. No permits were ever applied for or issued for the staircase, heating, and other interior changes made to the attic. It is not uncommon for the County's Tax Assessor Records to differ from what was permitted by the City, and when there is such a difference, the City's Building file, which has a record of all the permits issued for a property, has the overriding authority. RECOMMENDATION Planning Services recommends denial of Modification Application No. MC 10 -03. Tim Schwehr, Assistant Planner MC 10 -03 245 W. Walnut Avenue February 23, 2010 Jingming Luo 245 Walnut Ave. Arcadia Pages 1 -2 February 9, 2010 I am the owner of 245 Walnut Ave, Arcadia, California. I bought this home as my primary residence on November 4 2009. Before I purchase this house I have check its general information from the LA county assessor data, it shows this home was built in 1989, with 7,135 sq. ft living area that include the main house building and a guest house that build in 1992. The second owner owned the home since 1997, have never made any modification or any additions on the property during their 12 years occupancy until year 2009. Before I purchase this home, I want make sure the legal validity of 7,135 living square footage of says property. So, I acco npOctober another real 2 30PMtogether go to City of Arcadia to make verification The City Office Staff receiving us warmly and politely, after our question, she immediately print out the computer archives of house information and hand it to us, her material shows the total square footage of this property is 7,135. Then, she pull out the house file and check it detailed; she calculate the total square footage based on the house file and explanation of all the living space is come out together with the first floor 3,375 sqft the second floor 2,491 sqft, the attic 799 sqft and the guest house 599 sqft. She confirm that the county's record on 245 Walnut is correct, is all permitted, is legality record and don't need to doubt about it. She also explain to us that the house square footage is finalized by county assessor who inspect and measure the building personally after the house has build completed. Per the Office Staffs above answer that confirmed the legitimacy of living space and rest assured my housing purchase. However, on January 28 2010, I being told by City Inspector, the stairs that access to the 3rd floor attic need to be removed, because it is illegal to have a stairs between the second floor to the attic. This advice notice suddenly like a bomb hit my head. I couldn't believe this message. So, I go to city for verification again on Feb. 2nd 2010. The City Staff give me a deferent answer from last time. He says City of Arcadia has nothing to do about County's assessment record. It is the home owner's responsibility to verify that information with County himself. And City of Arcadia never allowed for built a stairs from the second floor to attic. 245 Walnut Ave. Arcadia Pages 2 -2 As a Home owner of City Arcadia, I earnestly beg the City Committee to approve the stairs remain its existing status. Please consider my points of view in following; 1. The attic and the stairs are previously existed fact in the house for 20 years. The stairs being built safety and solid and is beautifully matched the house style, plus it has approved itself with 20 years life test in the house, has never caused any unsafe problems. I earnestly beg City Committee to approve it's exist in reality. (Attached the stairs photos for your reviewing) 2. As I know that City have had permitted a maximum building high as 35 feet -high in 20 years ago. My home is about 35 -feet high, the attic high is indeed higher and larger which all have met the city building regulation and permitted at that time in 1989. Logically, I like to believe this stairs has already had permitted in 1989. 3. This access attic is permitted to built in 1989, measured square feet is about 799, is a bright, airy and lovely space. It is needed a safe and solid stairs to access to it. A simple pull -style stairs case is insecurity and is not make a sense for this sized of attic space. 4. The City Building Department is a reliable and authoritative source for the resident to verify their building questions. But what is happening if the resident obtains 2 different answers from the City on a same question. My case now results that I need to undertake the damages. I feel being treated unjustly. I have carried on my duty do the best to go to the City to verify the necessary building information and have obtained the validity and assured answer before I decide to purchase this home. I hope City can help me to resolve this issue. My honest plead The City Committee to approve my petition, Sincerely Truth, Jingming Luo March 9, 2010 TO: Arcadia Planning Commission FROM: Jim Kasama, Community Development Administrator By: Tim Schwehr, Assistant Planner SUMMARY STAFF REPORT Development Services Department SUBJECT: Revocation of Conditional Use Permit Application No. CUP 09 -09 (Resolution 1801) permitting a 960 square -foot expansion to an existing 2,040 square -foot restaurant located at 510 -512 E. Live Oak Avenue. On October 27, 2009, the Planning Commission approved CUP 09 -09 to permit Cafe Fusion's previously unpermitted expansion into the adjacent 960 square -foot unit at 510- 512 E. Live Oak Avenue. Several conditions of approval were required to be satisfied within 60 days and before the expansion area could continue to be used. After 60 days following the adoption of Resolution 1801 (attached) staff conducted an inspection of the subject business and found that the following conditions had not been complied with: 1. All karaoke and live entertainment equipment shall be removed from the premises. 2. All unpermitted signs shall be removed. 3. The bathroom facilities shall be upgraded to meet the Building Official's requirement of 1 urinal, 1 toilet, and 1 lavatory for men, and 2 toilets and 1 lavatory for women. 4. Agreements /Covenants with the City of Arcadia as a party thereto in forms approved by the City Attorney for the use of 16 off -site parking spaces at 600 618 E. Live Oak Avenue shall be executed and recorded in the Office of the County Recorder. At the February 9, 2010 Planning Commission meeting, staff informed the Planning Commission that the restaurant had not complied with the above conditions of approval within the required 60 days. The Planning Commission directed staff to initiate revocation proceedings. BACKGROUND INFORMATION At the February 9, 2010 Planning Commission meeting, the Commission directed staff to assemble a background history of this application. The following is a timeline of events related to CUP 09 -09: September 2008: Code Services received a complaint of noise, loitering and loud music at the subject property. During a site inspection, Code Services discovered microphones, amplifiers, and other equipment for live entertainment and karaoke, and that the restaurant had expanded into the adjacent commercial space. It was also discovered that the existing restaurant was displaying unpermitted signs. A notice of violation was issued to the owners of Cafe Fusion. October 31, 2008: Code Services issued a citation to the owner of Cafe Fusion for failure to address the violations. November 11, 2008: Cafe Fusion filed Sign Design Review Application No. SADR 08 -48 for a new channel letter front wall sign and a face change to the existing projecting sign approved in May of 2009. February 10, 2009: Code Services referred the violations for the unpermitted restaurant expansion and live entertainment to the City Attorney. May 14, 2009: The applicant submitted Conditional Use Permit Application No. CUP 09 -09. August 11, 2009: Conditional Use Permit Application No. CUP 09 -09 was considered by the Planning Commission. At this meeting, the applicant proposed to lease 20 parking spaces located at 405 Lynrose Street, which is approximately 900 feet from the restaurant. Because of the distance, staff recommended denial of the application. Just prior to the meeting, the applicant submitted a written request to the Planning Commission asking for a continuance to explore other parking solutions. By a vote of 3 -1 with one Commissioner absent, the Planning Commission granted a continuance to the September 22 meeting. September 22, 2009: At this meeting, the applicant proposed to lease 16 parking spaces from either the commercial strip mall to the north at 529 555 E. Live Oak Avenue or the commercial strip mall to the east at 600 618 E. Live Oak Avenue. In order to allow sufficient time for a detailed analysis of the proposed parking arrangements and to issue an expanded public hearing notice, staff recommended a continuance to the October 27, 2009 Planning Commission meeting. By a vote of 5 -0 the Planning Commission granted the continuance. October 27, 2009: At this meeting, by a vote of 4 -1 the Planning Commission conditionally approved CUP 09 -09 for the 960 square -foot restaurant expansion and use of 16 off -site parking spaces at 600 618 E. Live Oak Avenue in lieu of the on- site required parking for the expansion. The staff report is attached. CUP 09 -09 Revocation 510 -512 E. Live Oak Ave. March 9, 2010 Page 2 November 24, 2009: Resolution 1801 for CUP 09 -09 was adopted by the Planning Commission. Condition no. 12 of the resolution stated that all conditions of approval shall be satisfied within 60 days and prior to use of the expansion area. January 25, 2010: 60 days after the adoption of Resolution 1801, staff had not been contacted about the required plumbing improvements or the parking agreement/covenant. Upon contacting the restaurant manager of Cafe Fusion, staff was informed that no progress had been made. February 9, 2010: Staff presented a 60 -day report (attached) to the Planning Commission on the status of compliance with the conditions of approval stated in Resolution 1801. The report stated that none of the conditions of approval that were required to be met within 60 days had been satisfied. These include upgrading the bathroom facilities, filing a parking covenant, removing the unpermitted signage and live entertainment equipment, and that the expansion area not be used for dining purposes until all the conditions had been satisfied. The Planning Commission directed staff to initiate revocation proceedings. February 24, 2010: Staff issued the required notice to the applicant, business owners, and property owner informing them that a public hearing will be held by the Planning Commission at its regular meeting on March 9, 2010 to consider the revocation of Conditional Use Permit No. CUP 09 -09. UPDATE ON STATUS OF COMPLIANCE Since the February 9, 2010 Planning Commission Meeting, staff can progress on the conditions of approval: The live entertainment and karaoke equipment have been premises. report the following removed from the The unpermitted banner at the rear of the building has been removed. On March 3, 2010, the applicant submitted Sign Architectural Design Review Application No. SADR 10 -16 requesting approval of the wall signs that have been installed without approval or permits on the front and rear of the building, and approval of the new exterior paint color at the front of the building. Staff believes the new exterior paint color and non illuminated rear wall sign are consistent with the City's Design Guidelines, but the use of an exposed raceway for the front wall sign is not consistent with the guidelines and staff will request that the applicant reinstall the front wall sign with individual channel letters flush- mounted to the wall as approved by SADR 08-48. On March 3, 2010, a general contractor working on behalf of the owners of Cafe Fusion contacted staff regarding the required bathroom upgrades. The contractor was informed of the requirements and stated that plans for the upgrades are being drawn and will be submitted to the City within two weeks. CUP 09 -09 Revocation 510 -512 E. Live Oak Ave. March 9, 2010 Page 3 Also on March 3, 2010, staff contacted the original applicant and designer for CUP 09 -09, Mr. Michael Hsiao, to verify that he had received notice of the March 9th revocation proceedings. Mr. Hsiao informed staff that he had received the notice, but was no longer involved with the project. On March 5, 2010, Mr. Arthur Chen, the restaurant manager of Cafe Fusion, initiated the process for a Covenant/Agreement to lease 16 parking spaces at 600 618 E. Live Oak Avenue: A $315 check and copies of the deeds for the property at 600 618 E. Live Oak Avenue were submitted to Planning Services. Mr. Chen stated that the property owners of 600 618 E. Live Oak Avenue are willing to enter into an Agreement /Covenant for the off -site parking. Staff attempted to contact the property owners of 600 618 E. Live Oak Avenue to confirm their agreement, but the property manager, Mr. Jim Lek informed staff that the owners are currently out of the country and will not return until mid March. From staff's conversation with Mr. Lek, it appears that the property owners are willing to lease 16 parking spaces to Cafe Fusion, but it is unclear if they are willing to enter into an Agreement/Covenant with the City as a third -party. Because the original applicant/designer, Mr. Michael Hsiao is no longer working on behalf of Cafe Fusion, no one had taken the initiative to comply with the conditions of approval stated in Resolution 1801. After the February 24, 2010 Planning Commission meeting, Mr. Arthur Chen, the manager of Cafe Fusion began taking the necessary steps to comply with the conditions of approval. However, more time is needed to verify that an Agreement/Covenant for the off -site parking will be acceptable to the owners of 600 -618 E. Live Oak Avenue, and that the required improvements will be properly completed. RECOMMENDATION The Development Services Department recommends a continuance of the revocation proceedings of Conditional Use Permit No. CUP 09 -09 to the April 13, 2010 Planning Commission meeting. PLANNING COMMISSION ACTION Revocation If the Planning Commission intends to revoke Conditional Use Permit No. CUP 09 -09, the Commission should move for revocation, state the supporting findings, and direct staff to prepare a resolution for adoption at the next meeting that incorporates the Commission's decision, specific determinations and findings. Continuance If the Planning Commission intends to allow additional time for compliance with the conditions of approval, the Commission should move to continue the hearing on revocation of Conditional Use Permit No. CUP 09 -09 to a specific date. CUP 09 -09 Revocation 510 -512 E. Live Oak Ave. March 9, 2010 Page 4 If any Planning Commissioner, or other interested party has any questions or comments regarding this matter prior to the March 9, 2010 public hearing, please contact Assistant Planner, Tim Schwehr at (626) 574 -5422, or at tschwehr @ci.arcadia.ca.us. Approved by: Jim a munity Development Administrator Attachments: Resolution 1801 October 27, 2009 Staff Report February 9, 2010 Staff Report CUP 09 -09 Revocation 510 -512 E. Live Oak Ave. March 9, 2010 Page 5 RESOLUTION NO. 1801 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA, GRANTING CONDITIONAL USE PERMIT NO. CUP 09 -09 FOR A 960 SQUARE -FOOT EXPANSION TO AN EXISTING 2,040 SQUARE -FOOT RESTAURANT LOCATED AT 510 -512 E. LIVE OAK AVENUE, AND APPROVAL FOR THIS RESTAURANT TO UTILIZE OFF -SITE PARKING AT 610 -618 E. LIVE OAK AVENUE IN LIEU OF THE REQUIRED ON -SITE PARKING FOR THIS EXPANSION. WHEREAS, on May 14, 2009, a Conditional Use Permit application was filed by Michael Hsiao for a 960 square -foot expansion to an existing 2,040 square -foot restaurant; Development Services Department Case No. CUP 09 -09, at property commonly known as 510 -512 E. Live Oak Avenue; and WHEREAS, a public hearing was held by the Planning Commission on October 27, 2009, at which time all interested persons were given full opportunity to be heard and to present evidence. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF ARCADIA RESOLVES AS FOLLOWS: SECTION 1. That the factual data provided by the Development Services Department in the staff report dated October 27, 2009 are true and correct. SECTION 2. This Commission finds: 1. That the granting of Conditional Use Permit No. CUP 09 -09 will not be detrimental to the public health or welfare, or injurious to the property or improvements in such zone or vicinity because the proposed project is a minor alteration of an existing facility and is exempt from the California Environmental Quality Act (CEQA) as a Class 3 Categorical Exemption per Section No. 15303 of the CEQA Guidelines. 2. That the use applied for at the location indicated is a proper one for which a Conditional Use Permit is authorized. 3. That the site for the proposed use is adequate in size and shape to accommodate said use. All yards, spaces, walls, fences, loading, landscaping and other features including the shared parking with the other businesses in the same center, are adequate to adjust said use with the land and uses in the neighborhood. Th? proposed project complies with all related zoning requirements as set forth in the Arcadia Municipal Code. 4. That the site abuts streets and highways adequate in width and pavement type to carry the kind of traffic generated by the proposed use. 5. That the granting of Conditional Use Permit No. CUP 09 -09 will not adversely affect the comprehensive General Plan because the land use and current zoning are consistent with the General Plan. SECTION 3. That for the foregoing reasons this Commission grants Conditional Use Permit No. CUP 09 -09 for a 960 square -foot expansion to an existing 2,040 square -foot restaurant, subject to the following conditions: 1. The hours of operation shall be limited to 11:00 a.m. to 10:30 p.m., Sunday through Thursday, and 11:00 a.m. to 11:30 p.m., Friday and Saturday with use of the 960 square -foot expansion area limited to 5:00 p.m. to 10:30 p.m., Sunday through Thursday, and 5:00 p.m. to 11:30 p.m., Friday and Saturday. 2. There shall be no outdoor seating permitted. 3. There shall be no karaoke permitted, and any karaoke related equipment shall be removed from the premises. 2 1801 4. Live entertainment shall not be permitted, and any live entertainment equipment shall be removed from the premises. 5. The sale of beer and wine is to be incidental to the restaurant use. Sales for off- premise consumption or a bar -type use are not allowed. Beer and wine can only be served in conjunction with the serving of meals. 6. The maximum number of seats shall be 82 or the maximum occupancy as determined by Building Services and Fire Prevention, whichever is lower. 7. The use approved by CUP 09 -09 is limited to the restaurant. The restaurant shall be operated and maintained in a manner that is consistent with the proposal and plans submitted and approved for CUP 09 -09. 8. A separate sign design review application shall be submitted to the City for approval of all new signs on the premises. All unpermitted signs shall be removed. 9. The bathroom facilities shall be upgraded to meet the Building Official's requirement of 1 urinal, 1 toilet, and 1 lavatory for men, and 2 toilets and 1 lavatory for women. 10. Conditional Use Permit No. CUP 09 -09 includes a Parking Modification to allow 14 on-site parking spaces and the use of 16 off -site parking spaces at 600 -618 E. Live Oak Avenue. Agreements /Covenants with the City of Arcadia as a party thereto in forms approved by the City Attorney for the off -site parking spaces shall be executed, recorded in the Office of the County Recorder, and maintained at all times that the off- site parking is required for the use approved by CUP 09 -09. The Agreements /Covenants shall be recorded for both the restaurant property at 510 -512 E. Live Oak Avenue and the property where the supplemental off -site parking is to be 3 1801 maintained; 600 -618 E. Live Oak Avenue. This Parking Modification does not constitute an approval of a general reduction or alteration of the parking requirements for the subject property, but rather only for the restaurant that is herein conditionally approved. Uses other than this restaurant shall be subject to a new Conditional Use Permit and /or Parking Modification. 11. All City requirements regarding disabled access and facilities, occupancy limits, building safety, parking and site design shall be complied with to the satisfaction of the Building Official, Community Development Administrator, Fire Marshal, and Public Works Services Director. 12.AII conditions of approval shall be satisfied within 60 days and prior to use of the expansion area. Noncompliance with the plans, provisions and conditions of approval for CUP 09 -09 shall be grounds for immediate suspension or revocation of any approvals, including the prior Conditional Use Permit, CUP 04 -02, which could result in the closing of the entire restaurant. 13. The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officers, employees or agents to attack, set aside, void, or annul any approval or condition of approval of the City of Arcadia concerning this project and /or land use decision, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning 4 1801 the project and /or land use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. 14.Approval of CUP 09 -09 shall not take effect until the property owner(s), and applicants have executed and filed the Acceptance Form available from the Development Services Department to indicate awareness and acceptance of these conditions of approval. SECTION 4. The Secretary shall certify to the adoption of this Resolution. Passed, approved and adopted this 24 day of November, 2009. ATTEST: t.M./.4I e ry ning Commission APPROVED AS TO FORM: Stephen P. Deitsch City Attomey Chair aid anning Commission s 1801 October 27, 2009 TO: Arcadia Planning Commission FROM: Jim Kasama, Community Development Administrator By: Tim Schwehr, Assistant Planner SUMMARY STAFF REPORT Development Services Department SUBJECT: Conditional Use Permit Application No. CUP 09 -09 for a 960 square -foot expansion to an existing 2,040 square -foot restaurant located at 510 -512 E. Live Oak Avenue. The applicant is seeking a Conditional Use Permit and a parking modification to approve an expansion of an existing 2,040 square -foot restaurant into an adjacent 960 square -foot unit at 510 -512 E. Live Oak Avenue. To address a parking deficiency, the applicant is proposing to lease 16 parking spaces from one or two nearby commercial strip malls. This supplemental off -site parking arrangement was proposed at the September 22, 2009 Planning Commission meeting at which time the applicant was granted a continuance to complete a parking study of the proposed sites, and for staff to issue an expanded public hearing notification. It is staffs opinion that the supplemental off -site parking at either or both locations is a feasible solution, and therefore, is recommending approval of Conditional Use Permit No. CUP 09 -09 subject to the conditions listed in this report. GENERAL INFORMATION APPLICANT: Mr. Michael Hsiao, designer LOCATION: 510 -512 E. Live Oak Avenue between Hempstead Ave. and Lenore Ave. REQUEST: A Conditional Use Permit for a 960 square -foot expansion to an existing 2,040 square -foot restaurant located at 510 -512 E. Live Oak Avenue, with an increase in seating from 68 seats to 82 seats. The hours of operation for the expanded restaurant will be 11:00 a.m. to 10:30 p.m., Sunday through Thursday, and 11:00 a.m. to 11:30 p.m., Friday and Saturday, and the hours for the 960 square -foot expansion area will be further limited to 5:00 p.m. to 10:30 p.m., Sunday through Thursday, and 5:00 pm to 11:30 pm, Friday and Saturday. SITE AREA: 7,497 square feet (0.17 acres) FRONTAGES: 50 feet along East Live Oak Avenue 50 feet along a rear alley EXISTING LAND USE ZONING: The site is improved with 3,000 square -feet of commercial space and a 14 space parking lot. The site is zoned C -2, General Commercial. SURROUNDING LAND USES ZONING: North: 4,832 square -foot retail center zoned C -2 South: Church parking lot zoned R -2 and a single family residence located outside the city limits East: 2,024 square -foot restaurant zoned C -2 (CUP 70 -09) West: 8,890 square -foot retail complex with a restaurant zoned C -2 (CUP 90 -09) GENERAL PLAN DESIGNATION: Commercial PUBLIC HEARING NOTIFICATION Public hearing notices of Conditional Use Permit Application No. CUP 09 -09 were mailed on October 15, 2009 to the property owners, tenants and occupants of those properties that are within 300 feet of the subject property and within 300 feet of the two commercial strip malls that would provide the supplemental parking (see the attached radius map). Because Staff considers the proposed project exempt from the requirements of the California Environmental Quality Act (CEQA) the public hearing notice was not published in the Arcadia Weekly newspaper. BACKGROUND INFORMATION The subject property is developed with a one -story, two -unit commercial building and 14 space parking lot constructed in 1953. To the west is a six -unit commercial strip mall at 500 E. Live Oak Avenue, which includes a mix of small retail stores and a Japanese restaurant. These retail stores and restaurant share on -site front and rear parking lots with a total of 23 spaces. Adjacent to the subject property to the east is a Chinese restaurant at 516 E. Live Oak Avenue that has its own 17 space parking lot to the rear of the building. The subject business, which is currently known as Cafe Fusion, has been operating as a restaurant since before the City required Conditional Use Permits for restaurants. Therefore, there is no initial CUP for the restaurant use. However, on March 8, 2004, the Planning Commission approved Conditional Use Permit No. CUP 04 -02 to allow for on -site serving of beer and wine at the existing restaurant with 68 seats and operating hours of 11:00 a.m. to 11:30 p.m., Sunday through Thursday, and 11:00 a.m. to 1:00 a.m., Friday and Saturday. Resolution No. 1704 for this CUP is attached to this report. On August 11, 2009, the Arcadia Planning Commission considered Conditional Use Permit Application No. CUP 09 -09, to legalize an existing 960 square -foot expansion of the existing 2,040 square -foot restaurant. At this meeting, the applicant proposed to lease 20 parking spaces at 405 Lynrose Street, an industrial property that is approximately 900 feet from the subject restaurant. Because the proposed restaurant expansion is deficient in parking, and the location of the leased parking was too far away, staff recommended CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 2 denial of CUP 09 -09. The applicant; however, requested a continuance to allow time to explore other possible parking solutions. By a 3 -1 vote ;with 1 Commissioner absent, the Planning Commission granted a continuance of application no. CUP 09 -09 to the September 22, 2009 Planning Commission meeting. The continuance was granted with the following conditions: 1. The illegal restaurant expansion into the adjacent unit at 512 E. Live Oak Avenue shall be closed off and remain unused until further notice, 2. The restaurant shall have no more than 68 seats as specified in CUP 04 -02, and 3. The karaoke machine and all other equipment that could be used for live entertainment shall be removed from the premises. Following the August 11, 2009 meeting, staff inspected the site on multiple occasions and found that the expansion area is not being used, but the entertainment equipment was still in place. On September 22, 2009, the Planning Commission heard the continuance of application no. CUP 09 -09 to legalize the existing 960 square -foot expansion of the existing 2,040 square -foot restaurant. At this meeting, the applicant was proposing to lease 16 parking spaces from a commercial strip mall across the street at 529 -555 E. Live Oak Avenue, or from another nearby commercial strip mall located at 600 -618 E. Live Oak Avenue. In order to allow time for a parking study of both potential lease sites, and for an expanded public hearing notification to all the tenants, property owners, and residents within 300 feet of the subject property and the two potential lease sites, staff recommended a further continuance to the October 27, 2009 Planning Commission meeting. By a 5 -0 vote, the Planning Commission granted this second continuance. CODE VIOLATIONS In September 2008, Code Services received a complaint of noise, loitering and loud music at the subject property. During a site inspection, Code Services discovered microphones, amplifiers, and other equipment for live entertainment or karaoke, and that the restaurant had expanded into the adjacent commercial space. The applicant is currently not permitted to have any live entertainment or karaoke at this business, and is not requesting such as part of this application. It was also discovered that the existing restaurant was displaying unpermitted signs. A notice of violation was issued to the owners of Cafe Fusion for the following violations: Unapproved expansion into the adjacent unit at 512 E. Live Oak Avenue, Live entertainment without a permit, and Display of signs without design review approval or permits from Building Services. On October 31, 2008, Code Services issued a citation to the owner of Cafe Fusion for failure to address the violations. On February 10, 2009, Code Services referred these violations to the City Attorney. In May 2009, the applicant received design review approval for two new signs to replace the unpermitted signs, but these signs have yet to be installed and the illegal signs are still in place. Also in May 2009, the applicant submitted application no. CUP 09 -09. During a site visit to evaluate the CUP application, staff observed that the parking lots for the adjacent commercial properties at 500 E. Live Oak Avenue and 516 E. CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 3 Live Oak Avenue have prominently posted signs- stating, "No Cafe Fusion Parking." Photos of some of these signs are attached. PROPOSAL AND ANALYSIS The applicant is requesting approval of the illegal expansion of the existing 68 -seat, 2,040 square -foot restaurant into the adjacent 960 square -foot unit. This 960 square -foot space was previously occupied by a beauty salon. The proposal includes increasing the seating by 14 to a maximum of 82 patrons, and a Parking Modification to allow the use of an additional 16 spaces at a nearby commercial strip mall. The Building Official has reviewed the expanded floor plan and determined that it does not meet the minimum bathroom fixture requirements for a restaurant with a seating capacity of 82 seats. Bathrooms will have to be added or enlarged to meet the requirements of 1 toilet, 1 urinal, and 1 lavatory for men, and 2 toilets and 1 lavatory for women. The applicant is proposing to reduce the restaurant hours from those approved by CUP 04 -02 as follows with the expansion area to only be used after 5:00 p.m.: Parking CUP 04 -02 11:00 a.m. 11:30 p.m., Sun Wed 11:00 a.m. 1:00 a.m., Thur Sat Supplemental Parking at 529 -555 E. Live Oak Avenue CUP 09 -09 11:00 a.m. 10:30 p.m., Sun Thur 11:00 a.m. 11:30 p.m., Fri Sat There is a surface parking lot at 510 -512 E. Live Oak Avenue with 14 parking spaces; 13 standard spaces, and 1 handicap space. By Code, the expanded restaurant requires 30 parking spaces (10 spaces per 1,000 gross square -feet) and is therefore deficient 16 spaces. However, the CUP 04 -02 included a Parking Modification for 16 parking spaces in lieu of 25 required (20 spaces for the restaurant and 5 spaces for the beauty salon). The providing of a handicap space and loading area has resulted in the number of parking spaces being reduced to 14. Therefore, the current Parking Modification for the existing restaurant without the expansion is 9 spaces in lieu of 20; a deficiency of 11 spaces. The Parking Modification approved by CUP 04 -02 equates to 9 spaces for 68 seats, a ratio of 1 parking space for every 7.55 seats. Without the additional 16 off -site parking spaces, the on -site Parking Modification requested as part of this application would result in 14 spaces for 82 seats; a ratio of 1 parking space for every 5.86 seats, which would be an improved ratio if parking were required on a per seat basis. There is on- street parking available along this side of Live Oak Avenue; however, it is limited due to the location of a bus stop. The streets running south of Live Oak Avenue; Hempstead Avenue and Lenore Avenue, also allow for on- street parking. However, these streets lead to residential neighborhoods and are not well- suited for commercial parking. To address the parking deficiency, the applicant has come to terms with the owners of the commercial property across the street at 529 -555 E. Live Oak Avenue, Ms. Susan Tsai CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 4 and Mr. Spencer Tsai, to lease 16 parking spaces: Copies of sample agreements are attached to this report. According to City code, required parking spaces must be located either, on the same lot or site, or within 100 feet of the building or land use that the parking spaces will serve. Because 529 -555 E. Live Oak Avenue is within 100 feet of the subject property, surplus parking spaces at this site can be used for Cafe Fusion. The property at 529 -555 E. Live Oak Avenue currently has 27 parking spaces on -site. The code requirement for that property is 26 parking spaces; 12 spaces for the office uses, 5 spaces for the retail uses, and 9 spaces for a restaurant. A vacant, free standing, former automobile service garage is also on this site. But, since the gas station that accompanied this building was removed, parking is not being ascribed to this structure. Therefore, there is a surplus of 1 parking space at 529 -555 E. Live Oak Avenue. Observations of this commercial center indicate that much of the parking is underutilized, particularly in the evening. The majority of the site is general office with typical business hours, and the two retail uses are a nail salon that closes at 7:00 p.m. on weekdays, and a take -out only eating establishment. In addition, the restaurant (CUP 07 -06) is currently unoccupied. The applicant provided the attached sample parking study for a 2 week period showing the number of available parking spaces at this location. Available parking spaces were counted once per hour from 11 a.m. to 10 p.m. each day. The results show that parking at this Location is busiest during weekday business hours (11 a.m. to 5 p.m.) when approximately 50 -75% of the parking is occupied. Starting at 5 p.m. the use of these spaces drops significantly to roughly 25 These numbers indicate that there would be an average surplus of 7 -13 parking spaces from 11:00 a.m. 5:00 p.m. and 20 surplus spaces after 5:00 p.m. and on weekends. Staff conducted its own observations during weekday business hours and verified that not more than 75% of the parking is utilized at this center. But, this is with the restaurant unoccupied. Additionally, a new office building is proposed for this site. In July 2008, Planning Services approved Architectural Design Review No. ADR 08 -06 for a new 2,316 square -foot, two story office building to be adjacent to the existing 1,047 square -foot, free standing, former automobile service garage that is to be converted into general office space. In July 2009, Modification No. MC 09 -24 was approved by the Modification Committee to permit a 5' -0" street -side yard setback along Sixth Avenue in lieu of the 65' -0" Special Setback to allow the new building to align with the existing free standing building. On September 17, 2009, a building permit was issued for this new office building. For these approvals, a new parking lot was designed for 529 -555 E. Live Oak Avenue that will result in 35 parking spaces as shown on the attached site plan. The parking requirement for this site with the approved office building is 35 spaces. Therefore, with the new building, there will be no surplus parking. But, because the new building will be for general office uses, and is adding 8 parking spaces to the site, staff believes that much of the parking will remain underutilized, and therefore the parking study's estimate of 20 surplus parking spaces on- site during evening hours and weekends is not expected to change. Supplemental Parking at 600 -618 E. Live Oak Avenue As an alternative, Cafe Fusion has also entered into discussions with the owners of 600- 618 E. Live Oak Avenue to lease parking spaces at this site, which is approximately 130 feet away to the east across Hempstead Avenue. This would be an additional aspect to CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 5 the parking modification if this property were used for supplemental parking by Cafe Fusion. Sample agreements are attached. 600 -618 E. Live Oak Avenue has 58 parking spaces for 8,540 square -feet of commercial space that currently contains a mix of medical and retail uses, along with one restaurant. The current parking requirement for these uses is 57 spaces as detailed below, which means there is a surplus of 1 space: Parking Requirements for 600 -618 E. Live Oak Ave. Address Use Floor Area Spaces Required 600 Restaurant 1,175 sq. ft. 11.8 602 Retail 1,075 sq. ft. 5.4 606 Medical 1,019 sq. ft. 6.1 608 Medical 995 sq. ft. 6.0 610 Medical 995 sq. ft. 6.0 612 Retail 995 sq. ft. 5.0 614 Retail 995 sq. ft. 5.0 616 Retail 995 sq. ft. 5.0 618 Retail 1,291 sq. ft. 6.5 Totals 8,540 sq. ft. 56.8 The applicant provided the attached sample parking study for a 2 week period showing the number of available parking spaces at this location. Parking spaces were counted once per hour from 11:00 a.m. to 10:00 p.m. each day. The results show that this center is busiest during weekends and on weekday evenings, but only about 50% of the parking is utilized. These numbers indicate that there would be a surplus of approximately 25 parking spaces even during the busiest time at this center. Staff conducted its own observations during weekday business hours and found that most of the parking at this center is not utilized at these times. Noise and Entertainment The complaints to Code Services about the subject business from nearby residents included noise and loud conversations, late night loitering of patrons, and loud music. Cafe Fusion does not have an Entertainment Permit, and therefore is not permitted to have live entertainment at this location. An Entertainment Permit requires a public hearing before the Business Permit and License Review Board, and karaoke requires an approve CUP. Neither live entertainment, nor karaoke is being requested as part of this CUP application. Economic Development The City's Economic Development Manager has reviewed this application, and states that from an Economic Development perspective, an approval of the Cafe Fusion expansion would be a positive sign for commercial businesses and property owners during these difficult economic times, and would be especially good for the East Live Oak Avenue business district, which has not had the success of other commercial areas of the City. The expansion of Cafe Fusion underscores the most positive aspects of private business CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 6 and private investment, and their growth, and additional investment by the business owner should be encouraged. Public Comments In response to the initial public hearing notice mailed on July 30, 2009 staff received a telephone call from Mr. Gerry Wilson, who resides at 5700 Lenore Avenue and is a Senior Pastor at Arcadia Friends Church at 5705 Lenore Avenue. Mr. Wilson expressed his opposition to the requested restaurant expansion. He stated that he and other neighbors are fed up with the parking problems and Tate -night drinking. Patrons use the church parking lot and residential areas to park, and he believes that the restaurant is operating beyond 1:00 a.m. on weekends because he has been woken up at 2:00 a.m. on multiple occasions. He also believes they are serving alcoholic beverages other than just beer and wine. Mr. Wilson also sent an email to staff stating his opposition to CUP 09 -09, which is attached to this report. In response to the recent public hearing notice mailed on October 15, 2009, Mr. Gerry Wilson contacted Staff and expressed his continued concern about the restaurant expansion. Mr. Wilson did comment that if the expansion is approved, he is in favor of the proposal to lease off street parking and reduce the restaurant hours as a way of addressing his concerns. Conclusion Based on the supplemental information showing that parking is available at either potential lease site, staff is recommending approval of Conditional Use Permit No. CUP 09 -09, subject to the conditions listed in this report, including Parking Modifications to allow the leasing and use of 16 off -site parking spaces located at 529 -555 E. Live Oak Avenue; 600- 618 E. Live Oak Avenue; or another location within 130 feet of the subject property. A denial of Conditional Use Permit Application No. CUP 09 -09 would allow Cafe Fusion to continue operating as a 68 -seat, 2,040 square -foot restaurant, with a parking deficiency of 11 spaces, on -site beer and wine service, and the late operating hours approved by CUP 04 -02, but without live entertainment and /or karaoke. This proposal, by eliminating the late operating hours could make this restaurant more compatible with the nearby residences. CODE REQUIREMENTS All City requirements regarding disabled access and facilities, occupancy limits, building safety, parking and site design, and adjacent rights -of -way improvements are required to be complied with to the satisfaction of the Building Official, City Engineer, Community Development Administrator, Fire Marshal, and Public Works Services Director. CEQA Proposed projects that are not approved, are by virtue of being denied, exempt from any further environmental assessment. If approved, however, and if it is determined that no significant physical alterations to the property are necessary, then this project is categorically exempt from further environmental review pursuant to the provisions of the CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 7 California Environmental Quality Act (CEQA) as Class 3 Categorical Exemption per Section 15303(c) of the CEQA Guidelines as a conversion of a small structure under 10,000 square feet in floor area. A Preliminary Exemption Assessment is attached to this staff report. FINDINGS Section 9275.1.2 of the Arcadia Municipal Code requires that for a Conditional Use Permit to be granted, it must be found that all of the following prerequisite conditions can be satisfied: 1. That the granting of such Conditional Use Permit will not be detrimental to the public health or welfare or injurious to the property or improvements in such zone or vicinity. 2. That the use applied for at the location indicated is properly one for which a Conditional Use Permit is authorized. 3. That the site for the proposed use is adequate in size and shape to accommodate said use, and all yards, spaces, walls, fences, parking, loading, landscaping, and other features required to adjust said use with the land and uses in the neighborhood. 4. That the site abuts streets and highways adequate in width and pavement type to carry the kind of traffic generated by the proposed use. 5. That the granting of such Conditional Use Permit will not adversely affect the comprehensive General Plan. It is staff's opinion that the proposed restaurant expansion could satisfy all of the prerequisite conditions. RECOMMENDATION The Development Services Department recommends approval of Conditional Use Permit Application No. CUP 09 -09, subject to the following conditions: 1. The hours of operation shall be limited to 11:00 a.m. to 10:30 p.m., Sunday through Thursday, and 11:00 a.m. to 11:30 p.m., Friday and Saturday with use of the 960 square -foot expansion area limited to 5:00 p.m. to 10:30 pm, Sunday through Thursday, and 5:00 p.m. to 11 :30 p.m., Friday and Saturday. 2. There shall be no outdoor seating permitted. 3. There shall be no karaoke permitted. 4. Live entertainment shall not be permitted unless a separate Entertainment Permit is obtained. 5. The sale of beer and wine is to be incidental to the restaurant use. Sales for off premise consumption or a bar -type use is not allowed. Beer and wine can only be served in conjunction with the serving of meals. CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 8 6. The maximum number of seats shall be—the lesser of 82 or the maximum occupancy as determined by the Building Official and Fire Marshal. 7. The use approved by CUP 09 -09 is limited to the restaurant. The restaurant shall be operated and maintained in a manner that is consistent with the proposal and plans submitted and approved for CUP 09 -09. 8. A separate sign design review application shall be submitted for all new signs on the premises. All unpermitted signs shall be removed. 9. The bathroom facilities shall be upgraded to the satisfaction of the Building Official to meet the Building and /or Plumbing Code requirement of 1 urinal, 1 toilet, and 1 lavatory for men, and 2 toilets and 1 lavatory for women. 10. CUP 09 -09 includes a Parking Modification to allow 14 on -site parking spaces and the use of 16 off -site parking spaces at locations deemed suitable by the Development Services Director or designee and located within 130 feet of the subject property. Agreements /covenants with the City of Arcadia as a party thereto in forms approved by the City Attorney for the off -site parking spaces shall be executed and maintained at all times that the off -site parking is required for the use approved by CUP 09 -09. This Parking Modification does not constitute an approval of a general reduction or alteration of the parking requirements for the subject property, but rather only for the restaurant that is herein conditionally approved. Uses other than this restaurant shall be subject to a new Conditional Use Permit and /or Parking Modification. 11. All City requirements regarding disabled access and facilities, occupancy limits, building safety, parking and site design shall be complied with to the satisfaction of the Building Official, City Engineer, Community Development Administrator, Fire Marshal, and Public Works Services Director. 12. All conditions of approval shall be satisfied within 60 days. Noncompliance with the plans, provisions and conditions of approval for CUP 09 -09 shall be grounds for immediate suspension or revocation of any approvals, including the prior Conditional Use Permit, CUP 04 -02, which could result in the closing of the entire restaurant. 13. The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officers, employees or agents to attack, set aside, void, or annul any approval or condition of approval of the City of Arcadia concerning this project and /or land use decision, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and /or land use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 9 14. Approval of CUP 09 -09 shall not take effect until the property owner(s), and applicants have executed and filed the Acceptance Form available from the Development Services Department to indicate awareness and acceptance of these conditions of approval. PLANNING COMMISSION ACTION Approval If the Planning Commission intends to approve this application, the Commission should move to approve Conditional Use Permit Application No. CUP 09 -09; state the supporting findings and environmental determination, and direct staff to prepare a resolution incorporating the Commission's decision, specifid determinations and findings, and the conditions of approval for adoption at the next meeting. Denial If the Planning Commission intends to deny this application, the Commission should move to deny Conditional Use Permit Application No. CUP 09 -09; state the finding(s) that the proposal does not satisfy with reasons based on the record, and direct staff to prepare a resolution incorporating the Commission's decision and specific findings for adoption at the next meeting. If any Planning Commissioner, or other interested party has any questions or comments regarding this matter prior to the October 27, 2009 public hearing, please contact Assistant Planner, Tim Schwehr at (626) 574 -5422, or by email at tschwehr @ci.arcadia.ca.us. Approved by: J' asama ommunity Development Administrator Attachments: Aerial Photo Vicinity Map 300 -foot radius map Resolution No. 1704 for CUP 04 -02 Photos of "No Cafe Fusion Parking" signs Site Plan Floor Plan Photos of subject site and surrounding uses Sample agreements for 529 E. Live Oak Ave. Parking Study for 529 E. Live Oak Ave. Sample agreements for 600 -618 E. Live Oak Ave. Parking Study for 600 E. Live Oak Ave. Email of opposition Preliminary Exemption Assessment CUP 09 -09 510 -512 E. Live Oak Ave. October 27, 2009 Page 10 510 -512 E Live Oak Ave Arcadia Zone 529 -555 ELive Oak Ave 600 -618 ELive Oak Ave Development Services Department Engineering Division Prepared by. R.S.Gonzalez, October2009 510.512 E Live Oak Avenue CUP 09 -09 100 0 (511) R -3 (521) 100 Feet (2523) 529 -555 ELive Oak Ave C -2 (529 (2513) LIVE OAK AVE 11) Ci Los YNR r L OSE ST m Development Services Department Engineering Division Prepared by: R.S.Gonzatez, October2009 r m z 0 m 510.512 E Live Oak Avenue CUP 09.09 are SUE MORENO r (626) 350 -5944 OWNERSHIP OCCUPANTS LIST RADIUS MAPS LAND USE PLANS MUNICIPAL COMPLIANCE CONSULTING 12106 LAMBERT AVE.EL MONTE, CA 81732 FAX(326)350-1 PROJECT INFORMATIO.. 510, 529 -555, 600 -618 E. LIVE OAK, AVE. ARCADIA CA. 09 -208 SCALE 1" 200' YAM 1400•11c RESOLUTION NO. 1704 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. 2004 -002 FOR THE SALE OF BEER AND WINE IN AN EXISTING 2,000 SQ.FT. RESTAURANT (D.B.A. CAFE FUSION) WITH 68 SEATS AND OPERATION HOURS OF 11:00 A.M. TO 11:30 P.M., SUNDAY THROUGH THURSDAY, AND 11:00 A.M. TO 1:00 A.M., FRIDAY AND SATURDAY, AT 510 E. LIVE OAK AVENUE. WHEREAS, on March 8, 2004, a conditional use permit application was filed by C. C. Chang, agent of Cafe Fusion, for the sale of beer and wine in an existing 2,000 sq.ft. Restaurant (d.b.a. Cafe Fusion) with 68 seats and operation hours 11:00 a.m. to 11:30 p.m.. Sunday through Thursday, and 11:00 a.m. to 1:00 a.m., Friday and Saturday (Development Services Department Case No. CUP 2004 -002) at property commonly known as 510 E. Live Oak Avenue; and WHEREAS, a public hearing was held on April 27, 2004, at which time all interested persons were given full opportunity to be heard and to present evidence. NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF ARCADIA.RESOLVES AS.FOLLOWS: SECTION 1. That the factual data submitted by the Development Services Department in the attached report is true and correct. SECTION 2. This Commission finds: 1. That the granting of such Conditional Use Permit will not be detrimental to the public health or welfare, or injurious to the property or improvements in such zone or vicinity because the Initial study did not disclose any substantial adverse effects to the area affected by the proposed project. 2. That the use applied for at the location indicated is a proper one for which a Conditional Use Permit is authorized. 3. That the site for the proposed use Is adequate in size and shape to accommodate said use. All yards, spaces, walls, fences, loading, landscaping and other features including the shared parking with the neighboring business, are adequate to adjust said use with the land and uses in the neighborhood. The proposed project complies with .all related zoning requirements as set forth in the Arcadia Municipal Code. 4. That the site abuts streets and highways adequate in width and pavement type•to carry the kind of traffic generated by the proposed use. 5. That the granting of such Conditional Use Permit will not adversely affect the comprehensive General Plan because the land use and current zoning are consistent with the General Plan. 6. That the use applied for will not have a substantial adverse Impact on the environment, and that based upon the record as a whole there is no evidence that the proposed project will have any potential for anadverse effect on wildlife resources or the habitat upon which the wildlife depends. SECTION 3. That for the foregoing reasons this commission grants Conditional Use Permit no. CUP 2004 -002 for the sale of beer and wine in an existing 2,000 sq.ft. restaurant (d.b.a. Cafo Fusion) with 68 seats and operation hours of 11:00 a.m. to 11:30 p.m., Sunday through Thursday. and 11:00 a.m. to 1:00 a.m., Friday and Saturday at 510 E. Live Oak Avenue, upon the following conditions: 1. The hours of operation shall be limited to 11:00 a.m. to 11:30 p.m., Sunday through Thursday, and 11:00 a.m. to 1:00 a.m., Friday and Saturday. 2. There shall be no outdoor seating permitted. 3. The sale of beer and wine is incidental to the restaurant use only and is not intended for off premise consumption or a bar use. 4. The maximum number of .seats shall be 68 or the maximum occupancy as determined by Building Services, whichever is tower. 5. The use approved by CUP 2004 -002 is limited to the restaurant. The restaurant shall be operated and maintained In a manner that is consistent with the proposal and plans submitted and approved for CUP 2004-002. 6. A separate sign design review application shall be submitted for all new signs on the premises. 7. Any exterior alteration to the building requires the filing and approval of a design review application. 8. All conditions of approval shall be complied with prior to opening the restaurant. Noncompliance with the plans, provisions and conditions of approval for CUP 2004 -002 shall be grounds for immediate suspension or revocation of any approvals, which could result.in the closing of the restaurant. 9. Approval of CUP 2004002 shall not take effect until the property owner(s), and applicants have executed and filed the Acceptance Form available from the Development Services Department to indicate awareness and acceptance of these conditions of approval. 2 1704 10. The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officers, employees or agents to attack, set aside, void, or annul any approval or condition of approval of the City of Arcadia conceming this project and/or land use decision, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and /or and use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attomey to represent the City, its officers, employees, and agents in the defense of the matter. SECTION 4. The decision, findings and conditions contained in this Resolution reflect the Commission's action of April 27, 2004, by the following votes: AYES: Commissioners Hsu, 'Lucas, Wen, Olson, Baderian NOES: none SECTION 5. The Secretary shall certify to the adoption of this Resolution and shall cause a copy to be forwarded to the City Council of the City of Arcadia. I HEREBY CERTIFY that the forgoing Resolution was adopted at a regular meeting of the Planning Commission held on the 27 day of April, 2004, by the following votes: ATT`ST. AYES: NOES: none ecretary, P anni mission City of Arcadia APPROVED AS TO FORM: Stephen P. Deitsch, City Attorney Commissioners Hsu, Lucas, Wen, Olson, Baderian 3 Chairman, Planning Commission City of Arcadia 1704 w :;■:=1:.: 17 •;nr.; y 1 0016 VO 'MOVJUV IAV MVO 3An •3 0t9 NOISn 31V3 NOLLVailddV dn9 WW1.— odd NVid 3LS a 1, 3 1 1 1 1 F 1 f ti R 1 1 a S t 3 1 1 i e 1 1 1 i 1 1 1 1 1AV MONTI 00 46 V3 'VIOVDaV 3AV IV0 3A17 '3 0 49 NOISFH 31V3 NOUVJIlddV dfI3 i NVld a007I t 1 1 1 6 r 4 I,,,, icy i E_ _3 BI 1 V .--i3,--P F FP 11 fl ik f ro 1 son Frp, v. v I r i T E II p -,0,,,,, 7 00 46 V3 'VIOVDaV 3AV IV0 3A17 '3 0 49 NOISFH 31V3 NOUVJIlddV dfI3 i NVld a007I t 1 1 1 6 a, Q._ PARKING SPACES LEASE AGREEMENT Susan Tsai, Spencer Tsai (Leaser) and Cafe Fusion (Lessee) agree as follow: 1. PROPERTY: Leaser rents to Lessee and Lessee rents from Leaser, the real property and improvements described as: 16 regular parking spaces located at 529 E. Live Oak Ave., Arcadia, CA 91006 2. TERM: The term begins on September 1, 2009 (Commencement Date): Month to Month and continues as month to month tenancy. Lessee may terminate the tenancy by giving written notice at least 30 days prior to the intended termination date. Leaser may terminate the tenancy by giving written notice as provided by law. Such notices may be given on any date. 3. RENT: Rent shall mean all monetary obligations of Lessee to Leaser under the terms of the Agreement, except security deposit. A. Lessee agrees to pay $200 per month for the term of the Agreement. B. Rent is payable in advance on the 5th day of each calendar month, and is delinquent on the next day. C. PAYMENT: Rent shall be paid by cash or check, to Susan Tsai, Spencer Tsai 529 E. Live Oak Ave., Arcadia, CA 91006 If any payment is returned for non sufficient funds or other reason then all future Rent shall be paid by cash. 4. SECURITY DEPOSIT: A. Lessee agrees to pay $200 as a security deposit. Security deposit will be transferred to and held by the Owner of the Premises. B. Security deposit shall not be used by Lessee in lieu of payment of last month's rent. All or any portion of the security deposit may be used as reasonably necessary. If all or any portion of the security deposit is used during the tenancy, Lessee agrees to reinstate the total security deposit within five days after written notice is delivered to Lessee. C. No interest will be paid on security deposit. 5. LATE CHARGE; RETURNED CHECKS: Lessee acknowledges either late payment of Rent or issuance of a returned check may cause Leaser to incur costs and expenses, the exact amounts of which are extremely difficult and impractical to determine. If any installment of Rent due from Lessee is not received by Leaser within 5 calendar days after the date due, or if a check is returned, Lessee shall pay to Leaser $50.00 as Late Charge and $20.00 as a NSF fee for the first returned check and $30.00 as a NSF fee for each additional rettrned check, either or both of which shall be deemed additional Rent. 6. MAINTENANCE: A. Lessee shall properly use, landscaping and all mechanic Premises clean and sanitary. malfunction or damage. Lesse Lessee shall be charged for al timely manner. B. Lessee's failure to maintai right to hire someone to perfo maintenance. S: 11 Leaser rules and regulations that are at any time posted on the e. Lessee shall not, and shall ensure that guests and licensees of endanger or interfere with other tenants of the building or for any unlawful purposes, including, but not limited to, using, manufacturing, selling, storing or transporting illicit drugs or other contraband, or violate any law or ordinance, or commit a waEte or nuisance on or about the Premises. 7. RULES AND REGULATIO Lessee agrees to comply with Premises or delivered to Less Lessee shall not, disturb, ann neighbors, or use the Premise 8. ALTERATIONS AND REPAIRS: Without Leaser's prior writter consent, Lessee shall not make any repairs, alterations or impr vements in or about the Premises. 9. OT R TERMS AND CONDITIONS: Leas r will not responsible for the damages or personal properties loss of the parked vehi les. Lessee Su Mei Wang, Cafe Fusion 2 teaser Susan Tsai, Spencer Tsai perate and safeguard Premises, including if applicable, any 1, electrical, gas and plumbing fixtures, and keep them and the essee shall immediately notify Leaser, in writing, of any problem, shall be charged for all repairs or replacements caused by Lessee. damage to Premises as a result of failure to report a problem in a any item for which Lessee is responsible shall give Leaser the such maintenance and charge Lessee to cover the cost of such 0 g— Date Date 08/25/2009 l 0 08 25/2009 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Attorney City of Arcadia P. O. Box 60021 Arcadia, CA 91066 -6021 COVENANT AND AGREEMENT REGARDING OFF STREET PARKING AND COMPLY WITH CITY OF ARCADIA PARKING REQUIREMENTS This Covenant and Agreement is provided pursuant to Arcadia Municipal Code Section 9269.5 off- street parking requirements and 9269.6 parking location. In order to assure that the use at 529 -555 E. Live Oak Avenue as specifically described below meets City of Arcadia parking requirements. This Covenant and Agreement is also made with reference to a Lease Agreement which is attached as Exhibit "A" and incorporated as part of this Covenant. FOR GOOD, VALUABLE AND ADEQUATE CONSIDERATION, receipt of which is hereby acknowledged, SU MEI WANG (LEASEE) AND SUSAN TSAI AND SPENSER TSAI (LEASER) Hereinafter referred to collectively as "Covenantor" hereby declares to be the Lessee and Leasers of that certain real property located at 529 -555 E. Live Oak Avenue, in the City of Arcadia, County of Los Angeles, State of California, legally described as follow: Tract No. 11382 Lot 6 All of which is hereinafter referred to collectively as the "Affected Land" and incorporated as part of this Covenant and Agreement. Covenantor hereby agrees and covenants with the City of Arcadia, a Municipal Corporation (hereinafter referred to as the "Covenantee on behalf of and for the benefit of the Covenantee's land, which is the public street and right -of -way adjacent and contiguous to the Affected Land, and on behalf of and for the benefit of the "Benefitted Land" which consists of and includes all the public and private land located within 500 feet of the Affected Land as follow: 1. In consideration of the City's grant of a Conditional Use Permit for the purpose of conducting a restaurant business use on the premise at 510 -512 E. Live Oak Avenue and to provide adequate parking consistent with standards in the City Zoning Ordinances sections 9269.5 and 9269.6 for said business, Covenantor hereby covenants and agrees that the restaurant business use at 510 -512 E. Live Oak Avenue shall cease and terminate if, at any time, the current parking requirements of the City are not satisfied. This shall include any action pursuant to the Lease referred to herein (Exhibit "A that causes parking provided by said Lease to diminish or be terminated so as to result in inadequate parking pursuant to City Code requirements for the business at 510 -512 E. Live Oak Avenue. 2 2. This Covenant and Agreement is for the benefit of the Covenantee and its heirs, successors and assigns and is for the benefit of and shall inure to the benefit of all the Benefitted Land and the heirs, successors and assigns of the owners of the Benefitted Land, and this Covenant and Agreement shall run with the land and shall be binding upon the heirs, successors and assigns of the Covenantor. 3. The City of Arcadia in its capacity as Covenantee and in its capacity as the legal representative of the residents of the City of Arcadia and more particularly as the legal representative of all the owners of the Benefitted Land is hereby authorized to enforce the provisions of this Covenant and Agreement. 4. This Covenant is also for the benefit of the restaurant business at 510 -512 E. Live Oak Avenue as specifically described above by allowing the use at the facility to meet City Zoning requirements. Violation of this Covenant shall be proof that such zoning violations are not being complied with and the restaurant use at such premises shall not be a permitted use pending compliance with the parking requirements of the City of Arcadia. 5. If any section, subsection, sentence, clause, phrase or portion of this Covenant and Agreement is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decisions shall not affect the validity of the remaining portions of this Covenant and Agreement. IN WITNESS WHEREOF, Covenantor has executed this instrument on the date shown opposite its signature. "COVENANTOR" Su Mei Wang Date "COVENANTOR" Susan Tsai and Spencer Tsai Date "COVENANTEE" "CITY OF ARCADIA" a Municipal Corporation City Manager Date APPROVED AS TO FORM: City Attorney Date 1 bl 11 1 1 Z 1Lild [I 0■ is 1 .4.) +0 M M TUE' 01 00 00 01 01 h \p t` ZT zi Il OI ZI 00 00 00 r VO V7 'd' VG `4- d' tt 'mot `.ct 'd' Zvs 00 Q' Q C' rn N 7 cr'i J ZI 1I kO t— 'D '1 Q' nxc LI 81 SI -1 1'I ZI 00 M M Q7h1 t1I II 01 O 11 01 00 ■D V0 tr) kr Inc ZI 01 Z1 ZI ZI G?+ t--. 'O tr 1 NOIAI SI £I II 91 11 CO 60 C) In M \D LD lD +D kel 1 v7 ,LVS I 1I ZI II N nom. 81 81 Z1 SI GI 01 O� 00 lam- �O M ti tt WI I rudz 1 wdf I curly I rods 1 wdz 1 I wdg I ur I Q 0 '1 u A lai__ �"'CA.LI FORNIA ASSOCIATION 19r OF REALTORS' Date (For reference only): September 21, 2009 FAITHKAY, LLC CAFT FUSION "Landlord and 1. PROPERTY: Landlord rents to Tenant and Tenant rents from Landlord, the real property and Improvements described as: 600 r. zavr OAK Avs. ARCADIA. CA 91006 (PARKING LOF comprise approximately /o of the total sggare footage of rentable space in the entire property. See exhibit ("Premises"), which description of the Premises. for a further 2. TERM: The term begins on (date) (Check A or B): oataber 1, 2009 "Commencement Date A. Lease: and shall terminate on (date) at term of this agreement expires, with Landlord's consent, shall create a month -to -month tenancy that e materminate as specified l in paragraph 2B. Rent shall be at a rate equal to the rent for the immediately preceding month, payable in advance. All other terms and conditions of this agreement shall remain in full force and effect. B. Month -to- month: and continues as a month -to «month tenancy. Either party may terminate the tenancy by giving written notice to the other at least 30 days prior to the intended termination date, subject to any applicable laws. Such notice may be given on any date. C. RENEWAL OR EXTENSION TERMS: See attached addendum 3. BASE RENT: A. Tenant agrees to pay Base Rent at the rate of (CHECK ONE ONLY:) (1) 200.00 per month, for tf�e term of the agreement. CI (2) per month, fort a first 12 months of the agreement. Commencing with the 13th month, and upon expiration of each 12 months thereafter, rent shall be adjusted according to any increase in the U.S. Consumer Price Index of the Bureau of Labor Statistics of the Department of Labor for All prban Consumers "CPI for (the city nearest the location of the Premises), based on the following formula: Base Rent will be multiplied by the most current CPI preceding the first calendar month during iwhich the adjustment is to take effect, and divided by the most recent CPI preceding the Commencement Date. In no event shall arty adjusted Base Rent be less than the Base Rent for the month immediately preceding the adjustment. If the CPI is no longer published, then the adjustment to Base Rent shall be based on an alternate index that most closely reflects the CPI. per month for the period commencing per month for the period commencing and ending and per month for the priod commencing and ending and (4) In accordance with the attached rent schedule. and ending (5) Other: B. Base Rent is payable in advance on the 1st (or day of each calendar month, and is delinquent on the next day. C. If the Commencement Date falls on any day other than the first day of the month, Base Rent for the first calendar month shall be prorated based on a 30-day period. If Tenant has paid one full month's Base Rent in advance of Commencement Date, Base Rent for the second calendar month shall be prorated based on a 30 -day period. 4. RENT: A. Definition: "Rent shall mean all monetary obligations of Tenant to Landlord under the terms of this agreement, except security deposit. B. Payment: Rent shall be paid to (Name) at (address) location specified by Landlord in writing to Tenant. or at any other C. Timing: Base Rent shall be paid as specified in paragraph 3. All other Rent shall be paid within 30 days after Tenant is billed by Landlord. 5. EARLY POSSESSION: Tenant is entitled to possession of the Premises on If Tenant is in possession prior to the Commencement Date, during this time (I) Tenant is not obligated to pay Base Rent, and (II) Tenant is is not obligated to pay Rent other than Base Rent) Whether or not Tenant is obligated to pay Rent prior to Commencement Date, Tenant is obligated to comply with all other terms of this agreement. 6. SECURITY DEPOSIT: A. Tenant agrees to pay Landlord as a security deposit. Tenant agrees not to hold Broker responsible for its return. (IF CHECKED:) If Base Rent increases during tie term of this agreement, Tenant agrees to increase security deposit by the same proportion as the increase In Base Rent. B. All or any portion of the security deposit may be used, as reasonably necessary, to: (I) cure Tenant's default in payment of Rent, late charges, non sufficient funds "NSF fees, or other sums due; (11) repair damage, excluding ordinary wear and tear, caused by Tenant or by a guest or licensee of Tenant; (ill) broom clean the P remises if necessary, upon termination of tenancy; and (Iv) cover any other unfulfilled obligation of Tenant. SECURITY DEPOSIT SHALL. NOT BE US D BY TENANT IN LIEU OF PAYMENT OF LAST MONTHS RENT. If all or any portion of the security deposit is used during tenancy, Tenant a rees to reinstate the total security deposi withi 5 days after written notice is delivered to Tenant. Within 30 days after Landlord receives pos ession of the Premises, Landlord shall: (I) furnish Tenant an itemized statement indicating the am ount of any security deposit received and the asis for its disposition, and (II) return any remaining portion of security deposit to Tenant. However, if the Landlord's only claim upon the security deposit is for unpaid Rent, then the remaining portion of the security deposit, after deduction of unpaid Rent, shall be returned within 14 days after the Landlord receives possession. C. No interest will be paid on security deposit, unless required by local ordinance. The copyright laws of the United States unauthorized reproduction of this form, or any portion rtr 17 U.S.; Code) forbid the machine or any other means, including facsimile or photocopy computerized Copyright 1998 -2009, CALIFORNIA ASSOCIATION OF REALTORS® INC. ALL RIGHTS RESERVED. CL REVISED 10/01 (PAGE 1 of 6) COMMERCIAL LEASE AGREEMENT (C.A.R. Form CL, Revised 10/01) Landlord's Initials Tenant's Initials (4i,// ) COMMERCIAL LEASE AGREEMENT (CL PAGE 1 OF 6) Phone: (6126) 285 8333 Fax: (626) 236 9200 802 E Mission Rd, San,'.Gabriel CA 91776 Reviewed by Date EOUAL HOUSING OPPORTUNITY I Agent: Jim Lek Broker: Ko Tai Realty Prepared using WINForms® software I 600 E. LIVE OAK AVE. 1 WIA,ICA 91006 (PARKING LOT) Premises: Date September 21, 2009 7. PAYMENTS: PAYMENT TOTAL DUE RECEIVED BALANCE DUE DUE DATE A. Rent: From 10/01/2009 To 200.00 200.00 10/01/09 Date Date B. Security Deposit i C. Other: Category D. Other: Category E. Total: 20. 200.00 8. PARKING: Tenant is entitled to 16 unreserved and reserved vehicle parking spaces. The right to parking is is not included in the Base Rent charged pursuant to paragraph 3. If not included in the Base Rent, the parking rental fee shall be an additional per month. Parking space(s) are to be used for parking operable motor vehicles, except for trailers, boats, campers, buses or trucks (other than pick -up trucks). Tenant shall park in assigned space(s) only. Parking space(s) are to be kept clean. Vehicles leaking oil, gas or other motor vehicle fluids shall not be parked in parking spaces or on the Premises. Mechanical work or storage of inoperable vehicles is not allowed in parking space(s) or etsewhere the Premises. No overnight parking is permitted. 9. ADDITIONAL STORAGE: Storage is permitted as follows: The right to additional storage space is 0 is not included in the Base Rent charged pursuant to paragraph 3. If not included in Base Rent, storage space shall be an additional per month. Tenant shall store only personal property that Tenant owns, and shall not store property that is claimed by another, or in which another has any right, title, or interest. Tenant shall not store any improperly packaged food or perishable goods, flammable materials, explosives, or! other dangerous or hazardous material. Tenant shall pay for, and be responsible for, the clean -up of any contamination caused by Tenant's use of the storage area. 10. LATE CHARGE; INTEREST; NSF CHECKS: Tenant acknowledges that either late payment of Rent or issuance of a NSF check may cause Landlord to incur costs and expenses, the exact amount of which are extremely difficult and impractical to determine. These costs may include, but are not limited to, processing, enforcement and accounting expenses, and late charges imposed on Landlord. If any installment of Rent due from Tenant is not received by Landlord within 5 calendar days after date due, or if a check is returned NSF, Tenant shall pay to Landlord, respectively, 20.00 as late charge, plus 10% interest per annum on the delinquent amount and $25.00 as a NSF fee, any of which shall be deemed additional Rent. Landlord and Tenant agree th6t these charges represent a fair and reasonable estimate of the costs Landlord may Incur by reason of Tenant's late or NSF payment. Any late charge, delinquent interest, or NSF fee due shall be paid with the current installment of Rent. Landlord's acceptance of any late charge or NSF fee shall not constitute a waiver as to any default of Tenant. Landlord's right to collect a Late Charge or NSF fee shall not be deemed an extension of the dte Rent is due under paragraph 4, or prevent Landlord from exercising any other rights and remedies under this agreement, and as provided by law; 11. CONDITION OF PREMISES: Tenant has examined the Premises and acknowledges that Premise is clean and in operative condition, with the following exceptions: Items listed as exceptions shall be dealt with in the following manner: 12. ZONING AND LAND USE: Tenant accepts the Premises subject to all local, state and federal laws, regulations and ordinances "Laws Landlord makes no representation or warranty that Premises are now or in the future will be suitable for Tenant's use. Tenant has made its own investigation regarding all applicable Laws. 13. TENANT OPERATING EXPENSES: Tenant agrees to pay for all utilities and services directly billed to Tenant 14. PROPERTY OPERATING EXPENSES: A. Tenant agrees to pay its proportionate share of Landlord's estimated monthly property operating expenses, including but not limited to, common area maintenance, consolidated utility and service bills, insurance, and real estate taxes, based on the ratio of the square footage of the Premises to the total square footage of the rentable space in the entire property. OR B. (If checked) Paragraph 14 does not apply. 15. USE: The Premises are for the sole use as No other use is permitted without Landlord's prior written consent. If any use by Tenant causes an increase in the premium on Landlord's existing property insurance, Tenant shall pay for the increased cost. Tenant will comply with all Laws affecting its use of the Premises. 16. RULES /REGULATIONS: Tenant agrees to comply with all rules and regulations of Landlord (and, if applicable, Owner's Association) that are at any time posted on the Premises or delivered to Tenant. Tenant shall not, and shall ensure that guests and licensees of Tenant do not, disturb, annoy, endanger, or interfere with other tenants of the buildinP or neighbors, or use the Premises for any unlawful purposes, including, but not limited to, using, manufacturing, selling, storing, or transporting Ilicit drugs or other contraband, or violate any law or ordinance, or committing a waste or nuisance on or about the Premises. 17. MAINTENANCE: A. Tenant OR (If checked, Landlord) shall professionally maintain the Premises including heating, air conditioning, electrical, plumbing and water systems, if any, and keep glass, windows and doors In operable and safe condition. Unless Landlord is checked, if Tenant fails to maintain the Premises, Landlord may contract for or perform such maintenance, and charge Tenant for Landlord's cost. B. Landlord OR❑ (If checked, Tenant) shall maintain he roof, foundation, exterior walls, common areas and Copyright ©1998 -2009, CALIFORNIA ASSOCIATION OF REALTORS®, INC. CL REVISED 10/01 (PAGE 2 of 6) COMMERdIAL LEASE AGREEMENT (CL PAGE 2 OF 6) Landlord's Initials r Tenant's Initials Reviewed by Date FUSION COUAL HOUSING OPPORTUNITY 600 E. LIVE OAK AVE. ;ADIA, CA 91006 (PARKING LOT) Premises: Date September 21, 2009 18. ALTERATIONS: Tenant shall not make any alterations in or about the Premises, including installation of trade fixtures and signs, without Landlord's prior written consent, which shall not be unreasonably) withheld. Any alterations to -the Premises shall be done according to Law and with required permits. Tenant shall give Landlord advance notice of the commencement date of ant planned alteration, so that Landlord, at its option, may post a Notice of Non Responsibility to prevent potential Ilene against Landlord's interest in the Premises. Landlord may also require Tenant to provide Landlord with lien releases from any contractor performing work on the Premises. 19. GOVERNMENT IMPOSED ALTERATIONS: Any alterations required by Law as a result of Tenant's use shall be Tenant's responsibility. Landlord shall be responsible for any other alterations required bit Law. 20. ENTRY: Tenant shall make Premises available to Landlord or Landlord's agent for the purpose of entering to make inspections, necessary or agreed repairs, alterations, or improvements, or to supply necessary or agreed services, or to show Premises to prospective or actual purchasers, tenants, mortgagees, lenders, appraisers, or contractors. LandI rd and Tenant agree that 24 hours notice (oral or written) shall be reasonable and sufficient notice. In an emergency, Landlord or Landlord's representative may enter Premises at any time without prior notice. 21. SIGNS: Tenant authorizes Landlord to place a FOR SALE sign on the Premises at any time, and a FOR LEASE sign on the Premises within the 90 (or 0 day period preceding the termination of the agreement. 22. SUBLETTING/ASSIGNMENT: Tenant shall not sublet er encumber all or any part of Premises, or assign or transfer this agreement or any interest in it, without the prior written consent of Landlord, which shall not be unreasonably withheld. Unless such consent is obtained, any subletting, assignment, transfer, or encumbrance of the Premises, :agreement, or tenancy, by voluntary act of Tenant, operation of law, or otherwise, shall be null and void, and, at the option of Landlord, terminate this agreement. Any proposed sublessee, assignee, or transferee shall submit to Landlord an application and credit information for Landlord's approval, and, if approved, sign a separate written agreement with Landlord and Tenant. Landlord's consent to any one sublease, assignment, or transfer, Shall not be construed as consent to any subsequent sublease, assignment, or transfer, and does not release Tenant of Tenant's obligation under th s agreement. 23. POSSESSION: If Landlord is unable to deliver posses ion of Premises on Commencement Date, such date shall be extended to the date on which possession is made available to Tenant. However, the expiration date shall remain the same as specified in paragraph 2. If Landlord Is unable to deliver possession within 60 (or0 calendar days after the agreed Commencement Date, Tenant may terminate this agreement by giving written notice to Landlord, and shall be refunded 1l Rent and security deposit paid. 24. TENANT'S OBLIGATIONS UPON VACATING PREMISES: Upon termination of agreement, Tenant shall: (I) give Landlord all copies of all keys or opening devices to Premises, including any common areas; (II) vacate Premises and surrender it to Landlord empty of all persons and personal property; (iii) vacate all parking and storage spaces; 41v) deliver Premises to Landlord in the same condition as referenced in paragraph 11; (v) clean Premises; (vi) give written notice to Landlord of Tenant's forwarding address; and (vii) All improvements installed by Tenant, with or without Landlord's consent, become the property of Landlord upon termination. Landlord may nevertheless require Tenant to remove any such improv ment that did not exist at the time possession was made available to Tenant. 25. BREACH OF CONTRACT /EARLY TERMINATION: In vent Tenant, prior to expiration of this agreement, breaches any obligation in this agreement, abandons the premises, or gives notice of tenant's inteft to terminate this tenancy prior to its expiration, in addition to any obligations established by paragraph 24, Tenant shall also be responsible for Idst rent, rental commissions, advertising expenses, and painting costs necessary to ready Premises for re- rental. Landlord may also recover from tenant: (I) the worth, at the time of award, of the unpaid Rent that had been earned at the time of termination; (ii) the worth, at the time of award, of the amount by which the unpaid Rent that would have been earned after expiration until the time of award exceeds the amount of such rental loss the Tenant proves could have been reasonably avoided; and (111) the worth, at the time of award, of the amount by which the unpaid Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided. Landlord may elect to continue the tenancy in effect for so long as Landlord does not terminate Tenant's right to possession, by either written notice of termination of possession or by relenting the Premises to another who takes possession, and Landlord may enforce all Landlord's rights and remedies under this agr Including the right to recover the Rent as it becomes due. 26. DAMAGE TO PREMISES: If, by no fault of Tenant, Premises are totally or partially damaged or destroyed by fire, earthquake, accident or other casualty, Landlord shall have the right to restore the Premises by repair or rebuilding. If Landlord elects to repair or rebuild, and is able to complete such restoration within 90 days from the date of damage, subject to the terms of this paragraph, this agreement shall remain in full force and effect. If Landlord is unable to restore the Premises within this time, or if Landlord elects not to restore, then either Landlord or Tenant may terminate this agreement by giving the other written notice. Rent shall be abated as of the date of damage. The abated amount shall be the current monthly Base Rent prorated on a 30-day basis. If this agreement is not terminated, and the damage is not repaired, then Rent shall be reduced based on the extent to which the damage interferes with Tenant's reasonable use of Premises. If damage occurs as a result of an act of Tenant or Tenant's guests, only Landlord shall have the right of termination, and no reduction in Rent shall be made. 27. HAZARDOUS MATERIALS: Tenant shall not use, store, generate, release or dispose of any hazardous material on the Premises or the property of which the Premises are part. However, Tenant is permitted to make use of such materials that are required to be used in the normal course of Tenant's business provided that Tenant complies with aII applicable Laws related to the hazardous materials. Tenant is responsible for the cost of removal and remediation, or any clean -up of any contam nation caused by Tenant. 28. CONDEMNATION: If all or part of the Premises is condemned for public use, either party may terminate this agreement as of the date possession is given to the condemner. All condemnation proceeds, a clusive of those allocated by the condemner to Tenant's relocation costs and trade fixtures, belong to Landlord. i 29. INSURANCE: Tenant's personal property, fixtures, equi{}ment, inventory and vehicles are not insured by Landlord against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts bf others, or any other cause. Tenant is to carry Tenant's own property insurance to protect Tenant from any such toss. In addition, Tenant shall carry liability insurance in an amount of not less than Tenant's liability insurance shall name Landlord and Landlord's agent as ;additional insured. Tenant, upon Landlord's request, shall provide Landlord with a certificate of insurance establishing Tenant's compliance. Landlord shall maintain liability insurance insuring Landlord, but not Tenant, in an amount of at least plus property insurance in an amount sufficient to cover the replacement cost of the property. Tenant is advised to carry business interruption insurance in an amount at least sufficient to cover Tenant's complete rental obligation to Landlord. Landlord is advised to obtain a policy of rental loss insurance. Both Landlord and Tenant release each other, and waive their respective rights to subrogation against each other, for loss or damage covered by insurance. Copyright ®1998 -2009, CALIFORNIA ASSOCIATION OF REALTORS INC. CL REVISED 10101 (PAGE 3 of 6) Landlord's Initials Tenant's Initials i Reviewed by Date COMMERCI I L LEASE AGREEMENT (CL PAGE 3 OF 6) FUSION IOWA MUNK OPPORTUNITY 600 E. LIVE OAK AVE. AL._ _LDIA, CA 91006 (PARKING LOT) Premises: Date September 21, 2009 30. TENANCY STATEMENT (ESTOPPEL CERTIFICATE):) Tenant shall execute and return a tenancy statement (estoppel certificate), delivered to Tenant by Landlord or Landlord's agent, within 3 days after its receipt. The tenancstatement shall acknowledge that this agreement is unmodified and in full force, or In full force as modified, and state the modifications. Failure to comply with this requirement: (I) shall be deemed Tenant's acknowledgment that the tenancy statement is true and Correct, and may be relied upon a prospective lender or purchaser; and (II) may be treated by Landlord as a material breach of this agreement. Tenant shall also prepare, execute, and deliver to Landlord any financial statement (which will be held in confidence) reasonably requested by a prospective lender or buyer. 31. LANDLORD'S TRANSFER: Tenant agrees that the transferee of Landlord's interest shall be substituted as Landlord under this agreement. Landlord will be released of any further obligation to Tenant regaling the security deposit, only if the security deposit is returned to Tenant upon such transfer, or if the security deposit is actually transferred to the transferee. For all other obligations under this agreement, Landlord is released of any further liability to Tenant, upon Landlord's transfer. 32. SUBORDINATION: This agreement shall be subordinate to all existing liens and, at Landlord's option, the lien of any first deed of trust or first mortgage subsequently placed upon the real property of which the Premises are a part, and to any advances made on the security of the Premises, and to all renewals, modifications, consolidations, replacements, and extensions. However, as to the lien of any deed of trust or mortgage entered into after execution of this agreement, Tenant's right to quiefpossession of the Premises shall not be disturbed if Tenant is not in default and so long as Tenant pays the Rent and observes and performs all of the provisions of this agreement, unless this agreement is otherwise terminated pursuant to its terms. If any mortgagee, trustee, or ground lessor elects to have this agreement placed in a security position prior to the lien of a mortgage, deed of trust, or ground lease, and gives written notice to Tenants this agreement shall be deemed prior to that mortgage, deed of trust, or ground lease, or the date of recording. 33. TENANT REPRESENTATIONS; CREDIT: Tenant warrants that all statements in Tenant's financial documents and rental application are accurate. Tenant authorizes Landlord and Broker(s) to obtain Tenant's credit report at time of application and periodically during tenancy in connection with approval, modification, or enforcement of this agreement. Landlord may cancel this agreement: (1) before occupancy begins, upon disapproval of the credit report(s); or (Ii) at any time, upon discovering th, t Information in Tenant's application is false. A negative credit report reflecting on Tenant's record may be submitted to a credit reporting agency, if tenant fails to pay Rent or comply with any other obligation under this agreement. 34. DISPUTE RESOLUTION: A. MEDIATION: Tenant and Landlord agree to mediate' any dispute or claim arising between them out of this agreement, or any resulting transaction, before resorting to arbitration or court action, subje to paragraph 348(2) below. Paragraphs 34B(2) and (3) apply whether or not the arbitration provision is initialed. Mediation fees, if any, shall be ivided equally among the parties Involved. If for any dispute or claim to which this paragraph applies, any party commences an action without firstlattempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to re ov er attorney fees, even if they would otherwise be available to that party in any Such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED. B. ARBITRATION OF DISPUTES: (1) Tenant and La agree that any dispute or claim in Law or equity arising between them out of this agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration, including and subject to paragraphs 34B(2) and (13) below. The arbitrator shall be a retired Judge or justice, or an attorney with at least 5 years of real estate transactional law experience „unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive California Law. In all other respects, the arbitration shall be conducted in accordance with Part III, Title 9 of the California Code of Civil Procedure. Judgment] upon the award of the arbitrator(s) may be entered in any court having jurisdiction. The parties shall have the right to discovery In accordance with Code of Civil Procedure §1283.05. (2) EXCLUSIONS FROM MEDIATION AND ARBITJATION: The following matters are excluded from Mediation and Arbitration hereunder: (I) a judicial or non judicial foreclosure or other action or iroceeding to enforce a deed of trust, mortgage, or installment land sale contract as defined in Civil Code §2985; (ii) an unlawful detainer action; (III) the filing or enforcement of a mechanic's lien; (iv) any matter that is within the Jurisdiction of a probate, small claims, or bankruptcy court; and (v) an action for bodily injury or wrongful death, or for latent or patent defects to which Code of Civil Procedure §337.1 or §337.15 applies. The filing' of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a violation of the mediation and arbitration provisions. (3) BROKERS: Tenant and Landlord agree to mediate and arbitrate disputes or claims involving either or both Brokers, provided either or both Brokers shall have agreed to such mediation or arbitration, prior to, or within a reasonable time after the dispute or claim is presented to Brokers. Any election by either or both Brokers to participate in mediation or arbitration shall not result in Brokers being deemed parties to the agreement. "NOTICE: BY INITIALING. IN THE SOACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN 1'HE'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CA hFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LI��GATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR !JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORItY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.” "WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION." Landlord's Initials Copyright ®1998 -2009, CALIFORNIA ASSOCIATION OF I12EALTORS®, INC. CL REVISED 10/01 (PAGE 4 of 6) COMMERCIAL LEASE AGREEMENT (CL PAGE 4 OF 6) Tenant's Initials 4 Landlord's Initials Tenant's Initials 4v1/ Reviewed by Date FUSION [DUAL NOISING OPPORTUNITY Premises: 600 E. LIVE OAK AVE. A IDIA, CA 91006 (PARKING LOT) 35. JOINT AND INDIVIDUAL OBLIGATIONS: If there is more than one Tenant, each one shall be individually and completely responsible for the performance of all obligations of Tenant under this agrepment, jointly with every er Tenant, and individually, whether or not in possession. 36. NOTICE: Notices may be served by mail, facsimile, or dourier at the following address or location, or at any other location subsequently designated: Landlord: Tenant` i Notice is deemed effective upon the earliest of the followi n: (t) personal receipt by either party or their agent; (ii) written acknowledgement of notice: or (iti) 5 days after mailing notice to such location by first clas mail, postage pre -paid. 37. WAIVER: The waiver of any breach shall not be constr ed as a continuing waiver a d hold Landlord er of the same breach or a waiver of any subsequent breach. 38. INDEMNIFICATION: Tenant shall indemnify, d armless from all claims, disputes, litigation, judgments and attorney fees arising out of Tenant's use of the Premises. 39. OTHER TERMS AND CONDITIONS /SUPPLEMENTS: The following ATTACHED supplements /exhibits are incorporated in this agreement: 0 Option Agreement (C.A.R. Form OA) 40. ATTORNEY FEES: In any action or proceeding arising out of this agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs from the non prevailing Landlord or Tenant, except as provided In paragraph 34A. 41. ENTIRE CONTRACT: Time is of the essence. All p constitutes the entire contract. It is intended as a final agreement or contemporaneous oral agreement. The p terms, and that no extrinsic evidence whatsoever may b of this agreement that is held to be invalid shall not aff be binding upon, and inure to the benefit of, the heirs, a 42. BROKERAGE: Landlord and Tenant shall each pay t Landlord has utilized the services of, or for any other i finder, or other entity, other than as named in this a inquiries, Introductions, consultations, and negotiations harmless the other, and the Brokers specified herein, inconsistent with the warranty and representation in this 43. AGENCY CONFIRMATION: The following agency relati Listing Agent: (check one): 0 the Landlord exclusively; or 0 both the Tenant and 1 Selling Agent: (check one): 0 the Tenant exclusively; or 0 the Landi Real Estate Brokers are not parties to the agreement be for agreements between Landlord and Tenant are incorporated in this agreement, which e xpression of the parties' agreement, and may not be contradicted by evidence of any prior rties further intend that this agreement constitutes the complete and exclusive statement of its Introduced in any Judicial or other proceeding, if any, involving this agreement. Any provision ct the validity or enforceability of any other provision in this agreement. This agreement shall signees and successors to the parties. Broker(s) the fee agreed to, if any, in a separate written agreement. Neither Tenant nor eason owes compensation to, a licensed real estate broker (individual or corporate), agent, reement, in connection with any act relating to the Premises, including, but not limited to, leading to this agreement. Tenant and Landlord each agree to indemnify, defend and hold nd their agents, from and against any costs, expenses, or liability for compensation claimed aragraph 42. nships are hereby confirmed for this transaction: (Print Firm Name) is the agent of Copyright ®1998 -2009, CALIFORNIA ASSOCIATION OF R CL REVISED 10/01 (PAGE 5 of 6) COMMERC andlord. (Print Firm Name) (if not same as Listing Agent) is the agent of rd exclusively; or 0 both the Tenant and Landlord. v een Tenant and Landlord. EALTORS INC. Landlord's Initials Tenant's Initials Date September 21, 2009 Reviewed by Date AL LEASE AGREEMENT (CL PAGE 5 OF 6) FUSION MIK OPPORTUNITY MP Premises: v Lndlord re and Tenant acknowledge and agr will hot e fy toning and restrictions; iv) cannot provide legal or t arantee the avic advice; (v) representations provide made by others, (1 11) obtain (v) real will not provide o advice or Bro ers not also acting knowledge, education or experience required to in this agreement, Brokers: (vi) do not detain a real estate license. Furthermore, nt sh ld k decide wh at anc rnc rate Landl La andlord and Tenant a ree oil Landlord should that they will seek legall,,ttax, and ins and other desired the length or other terms of t assistance from eny. od and agree professionals. Tenant 44 CAGE FUSION (Print Name) Address 510 E. LIVE OAK AVE. Tenant 600 E. LIVE OAK AVE. ARCADIA,'CA 91006 (PARKING LOT) CL REVISED 10101 (PAGE 6 OF 6) City AR IA Date September 21, 2009 Date September 21, 2009 State CA Zip 91754 Date (Print Name) City State Zip Address F'L e-- Date Landlord (o er or agent with authority to enter into this agr ement) City )tRGADIA State CA Zip 91006 Address 600 E. LIVE OAK AVE. Date State Zip Landlord (owner or agent with authority to enter into this agreement) City Address i Agency relationships are confirmed as above. Real estate brokers who are not also Landlord in this agreement are not a party to the agreement between Landlord and Tenant. DRE Lic. Real Estate Broker (Leasing Firm) DRE Lic. Date By (Agent) Address City State Zip Telephone Fax E -mall DRE Lic. Real Estate Broker (Listing Firm) DRE Lic. Date By (Agent) City State Zip Address Telephone Fax E -mail THIS FORM HAS BEEN APPROVED BY THE NY SPECIFIC CALIFORNIA TRANSACTl0N. A REAL BROKEROIS THEEPERSONOQUALIFIED TO A ADVISE ON REAL ESTATE L VALIDITY OR. ADEQUACY ANY OF ANY PROVISION IN ANY IF YOU use DESIRE LEGAL OR TAX ADVICE, CONSULT APPROPRIATE the a user PROFESSIONAL. This form Is available f or b m the entire real estate of the NATIONAL ASSO t CIATION OFo REALTORS ®who subscribe to It Code R oi Ethi�csLTOR® is a registered collective membership mark which may be used only Y me Published and Distributed by: REAL ESTATE BUSINESS SERVICES, INC. a subsidiary of the California Association of REALTORS® m 525 South Virgil Avenue, Los Angeles, California 90020 COMMERCIAL LEASE AGREEMENT (CL PAGE 6 OF 6) I Reviewed by Date UNARMING OPPORTUNITY FUSION 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Attorney City of Arcadia P. O. Box 60021 Arcadia, CA 91066 -6021 COVENANT AND AGREEMENT REGARDING OFF STREET PARKING AND COMPLY WITH CITY OF ARCADIA PARKING REQUIREMENTS This Covenant and Agreement is provided pursuant to Arcadia Municipal Code Section 9269.5 off street parking requirements and 9269.6 parking location. In order to assure that the use at 600 -618 E. Live Oak Avenue as specifically described below meets City of Arcadia parking requirements. This Covenant and Agreement is also made with reference to a Lease Agreement which is attached as Exhibit "A" and incorporated as part of this Covenant. FOR GOOD, VALUABLE AND ADEQUATE CONSIDERATION, receipt of which is hereby acknowledged, SU MEI WANG (LEASEE) AND JIM LEK FAITHKAY, LLC (LEASER) Hereinafter referred to collectively as "Covenantor" hereby declares to be the Lessee and Leasers of that certain real property located at 600 -618 E. Live Oak Avenue, in the City of Arcadia, County of Los Angeles, State of California, legally described as follow: Tract No. 15233 Lots 3, 4, 5 and 6 All of which is hereinafter referred to collectively as the "Affected Land" and incorporated as part of this Covenant and Agreement. Covenantor hereby agrees and covenants with the City of Arcadia, a Municipal Corporation (hereinafter referred to as the "Covenantee on behalf of and for the benefit of the Covenantee's land, which is the public street and right -of -way adjacent and contiguous to the Affected Land, and on behalf of and for the benefit of the "Benefitted Land" which consists of and includes all the public and private land located within 500 feet of the Affected Land as follow: 1. In consideration of the City's grant of a Conditional Use Permit for the purpose of conducting a restaurant business use on the premise at 510 -512 E. Live Oak Avenue and to provide adequate parking consistent with standards in the City Zoning Ordinances sections 9269.5 and 9269.6 for said business, Covenantor hereby covenants and agrees that the restaurant business use at 510 -512 E. Live Oak Avenue shall cease and terminate if at any time, the current parking requirements of the City are not satisfied. This shall include any action pursuant to the Lease referred to herein (Exhibit "A that causes parking provided by said Lease to diminish or be terminated so as to result in inadequate parking pursuant to City Code requirements for the business at 510 -512 E. Live Oak Avenue. 2 2. This Covenant and Agreement is for the benefit of the Covenantee and its heirs, successors and assigns and is for the benefit of and shall inure to the benefit of all the Benefitted Land and the heirs, successors and assigns of the owners of the Benefitted Land, and this Covenant and Agreement shall run with the land and shall be binding upon the heirs, successors and assigns of the Covenantor. 3. The City of Arcadia in its capacity as Covenantee and in its capacity as the legal representative of the residents of the City of Arcadia and more particularly as the legal representative of all the owners of the Benefitted Land is hereby authorized to enforce the provisions of this Covenant and Agreement. 4. This Covenant is also for the benefit of the restaurant business at 510 -512 E. Live Oak Avenue as specifically described above by allowing the use at the facility to meet City Zoning requirements. Violation of this Covenant shall be proof that such zoning violations are not being complied with and the restaurant use at such premises shall not be a permitted use pending compliance with the parking requirements of the City of Arcadia. 5. If any section, subsection, sentence, clause, phrase or portion of this Covenant and Agreement is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decisions shall not affect the validity of the remaining portions of this Covenant and Agreement. IN WITNESS WHEREOF, Covenantor has executed this instrument on the date shown opposite its signature. "COVENANTOR" Su Mei Wang Date "COVENANTOR" Jim Lek Faithkay, LLC Date "COVENANTEE" "CITY OF ARCADIA" a Municipal Corporation City Manager Date APPROVED AS TO FORM: City Attorney Date 00 ON ON C- l C+G 11 o 11 z N N 11 Z1 MON to r- 17 1 01 ■O 'Cr N M N N in VI L1 OZ 91 9I zz 81 0 oN NO 00 i I2Ig 01 ON rON 01 1 81 61 oo OZ 91 PI 00 cr 'r TI 1 s 17 LI 61 OT •e- re) a� 00 r No ZI ON rei -r HffflIL ZI 01 Z1 Oo N NOW zl f z Z t str Nf1S 11 ON ON 1 4 t kr) .tvs trl LI £Z ii LI f 1z 61 ZI 01 f Z 00 11 11 01 LI LI 81 f bZ Ll El r 00 OI El 91 61 81 01 tun urd j wdz wd£ wd d urds II wdy urdz I iild;91 wd6 Tim Schwehr From: J Gerry Wilson [gerwil ©sbcglobal.net] Sent: Wednesday, August 05, 2009 3:45 PM To: Tim Schwehr Subject: Application CUP 09 -09 Page 1 of 1 Tim Schwehr, Assistant Planner, Thanks for taking my phone call the other day, and for the brief conversation yesterday, as you were taking pictures in our church parking lot. Once again, for the record, let me voice my personal (as a neighbor) and professional (as Senior Pastor of Arcadia Friends Community Church and Preschool) objection to the request of Michael Hsiao for a Conditional Use Permit at his restaurant located at 510- 512 E. Live Oak Ave. in Arcadia. I fmd it ironic that Mr. Hsiao is only now trying to legalize the use of facilities that he has been using and abusing for the last few years since he opened for business. The reality of the situation, speaking as a resident at 5700 Lenore Ave, that is behind the alley where his parking and entrance is, there is no room in our neighborhood for his business to expand, or to stay at the present level of use. He does not have anywhere near enough parking, which results in his customers parking in our church parking lot and on both sides of our street, three to four houses south of my own home. I am tired of the parking issues, the noise late at night (2am) as people leave. I have had to personally pick up trash and bottles left in the street and our parking lot, as well as wash down the pavement of vomit left by his customers. As the Block Captain for our Neighborhood Watch Program, I can say on behalf of my neighbors on Lenore AVe that not only do we object to this expansion, we would hope that the City would step in and clearly curtail what is happening at Mr. Hsiao's business. It has turned our quiet neighborhood into an often noisy, dangerous and dirty environment. If you need further info or details, or have questions, please don't hesitate to contact me. gerwil @sbcglobal.net Horne 626 -574 -7329 Office 626 445 -2130 Cell 626- 826 -4982 Sincerely, J. Gerry Wilson, Concerned Neighbor Senior Pastor of Arcadia Friends Community Church 5700 Lenore Ave Arcadia, CA 91006 R/7/9nn9 1. Name or description of project: PRELIMINARY EXEMPTIO$1 ASSESSMENT (Certificate of Determination When Attached to Nbtice of Exemption) Conditional Use Permit Application No. CUP 09 -09 for a 960 square -foot expansion to an existing 2,040 square foot restaurant located at 510 -512 E. Live Oak Avenue. 2. Project Location Identify street address and cross streets or attach a map showing project site (preferably a USGS 15' or 7W topographical map identified by quadrangle name): 510 -512 E. Live Oak Ave. (between Hampstead Avenue and Lenore Avenue) 3. Entity or person undertaking project: A. City of Arcadia B. Other (Private) (1) Name: Michael Hsiao (d.b.a. Avant Garde Design Int.) (2) Address: 2063 S Atlantic #2D Monterey Park, CA 91754 (3) Phone: (323) 263 -2484 4. Staff Determination: The City's Staff, having undertaken and completed a preliminary review of this project in accordance with the City's "Local Guidelines for Implementing the Califomia Environmental Quality Act (CEQA)" has concluded that this project does not require further environmental assessment because: a. The proposed action does not constitute a project under CEQA. b. The project is a Ministerial Project. c. The project is an Emergency Project. d. The project constitutes a feasibility or planning study. e. The project is categorically exempt. Applicable Exemption Class: 3 Section No.: 15303(c) f. The project is statutorily exempt. Applicable Exemption: Section No.: g. The project is otherwise exempt on the following basis: h. The project involves another public agency which constitutes the Lead Agency. Name of Lead Agency: Date: October 8, 2009 Staff: Tim Schwehr, Assistant Planner DATE: February 9, 2010 T9: Arcadia Planning Commission FROM: Jim Kasama, Community Development Administratq Tim Schwehr, Assistant Planner i w5 SUBJECT: Cafe Fusion (CUP 09 -09) 510 -512 E. Live Oak Avenue MEMORANDUM Development Services Department On October 27, 2009, the Planning Commission approved CUP 09 -09 (Resolution 1801) to permit Cafe Fusion's previously unpermitted expansion into the adjacent 960 square -foot unit at 510 -512 E. Live Oak Avenue. Several conditions of approval were required to be satisfied within 60 days and prior to use of the expansion area. And, noncompliance with the plans, provisions, and conditions of approval is grounds for immediate suspension or revocation of any approvals, including the prior Conditional Use Permit, CUP 04 -02 (Resolution 1704), which could result in the closing of the entire restaurant. The specific conditions to be satisfied within 60 days and prior to the use of the expansion were the following: 1. All live entertainment equipment or karaoke related equipment shall be removed from the premises. 2. All unpermitted signs shall be removed. 3. The bathroom facilities shall be upgraded to meet the Building Official's requirement of 1 urinal, 1 toilet, and 1 lavatory for men, and 2 toilets and 1 lavatory for women. 4. Agreements /Covenants for the use of 16 off-site parking spaces at 600 -618 E. Live Oak Avenue shall be submitted to the City Attorney for review, and following approval, recorded in the Office of the County Recorder. Following inspection of the subject business, staff can report that the live entertainment and karaoke equipment have not been removed from the premises. The unpermitted signs have been removed from the front of the building, but an unpermitted sign and unpermitted banner are still displayed at the back of the building. New signage has been installed at the front of the building, but no building permits were obtained. The new sign has an exposed raceway that was not included on the plans approved in design review (SADR 08 -48). The upper portion of the front of the building has also been painted a purple /pink color without consulting staff or receiving City approval. The bathroom facilities have not been upgraded and no plans to upgrade them have been submitted to the City's Building Services. No Agreements /Covenants for the use of 16 off -site parking spaces have been submitted to the City Attorney for review. On the evening of January 18, 2009, staff conducted a site inspection of the business to determine if the 960 square -foot expansion was in use. At that time, no patrons were dining in the expansion, but tables and chairs with place settings were set up in the expansion area. However, it should be noted that the expansion has been set up in this manner since the restaurant first applied for their CUP in May of 2009. The Development Services Department has not received any recent complaints from neighbors or adjacent businesses about this restaurant. Since the October 27 Planning Commission Meeting, Code Services and Planning Services have been in contact with the owner and manager of Cafe Fusion, and have informed them of the need to comply with City regulations and the specific conditions of approval stated in CUP 09 -09, but no efforts have been made to remedy the violations or satisfy the conditions of approval. Therefore, Planning Services and the Business License Office are revoking the CUP's and the business license of Cafe Fusion at 510 -512 E. Live Oak Avenue. Attachments: Resolution 1801 CUP 09 -09 Resolution 1704 CUP 04 -02 Photos of subject property Approved Sign Plans SADR 08 -48 F- Z o tr z w 00 0) 0 m W z U v) ..m W U g g= _1 p ce 6 D w 0 O O U CD Z Z U W WQ 2 H U I p O 0 0 2 Cam') U 0 w I- 2 l� Q I— 0 m O CO CO Z (.1 O 0 a ix w Z Q m JZ re in 0 6 W co 'V' LL. W J z J F- Z Z 0 P. re 5 w W V m Q O 0 HZ U Z til U. pm Z z o WZNCtrWix W J J U =V re w- <I-��g m_i t 0 Z� ZI m H <3001203, wU O Z X w F= V O� m 1 F Op Jm1-_a QF- W DI- ceJw=te OQ _p =W= tr .1= 1 �fAcc-w 'w 8. iz° R wcno 0i ?N Z� tt0 Zw W C OO co b C_9st>-pW W F_- W 'wJW —1 O F- W -1OVOUO2 2 0 N L p c'l r ....-.1 r" i 6 c Q r-t 4 tgti If Sn7d cW ji'dV O c0 0 0 0 O U O) 0 0 CV f0 N 0 0 0 c o_wawO� cm w c z u) Z ei oLu E -J(1 u REI W RESOLUTION NO. 1813 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING CONDITIONAL USE PERMIT NO. CUP 10 -01 TO OPERATE A TUTORING CENTER WITH UP TO 80 STUDENTS WITHIN 4,313 SQUARE -FEET OF EXISTING OFFICE SPACE ON THE SECOND -FLOOR OF THE COMMERCIAL SHOPPING CENTER AT 1135 W. HUNTINGTON DRIVE. WHEREAS, on January 11, 2010, an application was filed by Elite of Arcadia, Inc. for a tutoring center with a maximum of 80 students within 4,313 square -feet of existing office space on the second -floor of the commercial shopping center; Development Services Department Case No. CUP 10 -01; at 1135 W. Huntington Drive; WHEREAS, a public hearing was held by the Planning Commission on February 23, 2010, at which time all interested persons were given full opportunity to be heard and to present evidence. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF ARCADIA RESOLVES AS FOLLOWS: SECTION 1. That the factual data submitted by the Development Services Department in the staff report dated February 23, 2010 are true and correct. SECTION 2. This Commission finds: 1. That the granting of such Conditional Use Permit will not be detrimental to the public health or welfare, or injurious to the property or improvements in such zone or vicinity because the proposed tutoring center will not conflict with the other uses at this site or the businesses and residences in the surrounding area. 2. That the use applied for at the location indicated is a proper one for which a Conditional Use Permit is authorized by Section 9275.1.35.1 of the Arcadia Municipal Code. 3. That the site for the proposed use is adequate in size and shape to accommodate said use, and all yards, spaces, walls, fences, parking, loading, landscaping and other features required to adjust said use with the land and uses in the neighborhood. 4. That the site abuts streets and highways adequate in width and pavement type to carry the kind of traffic generated by the proposed use. The subject property is accessible from Huntington Drive, Michillinda Avenue, and Sunset Boulevard, all of which are adequate in width and pavement type for the traffic that is and will be generated by the residences and businesses in the area, including the tutoring center that is approved by Conditional Use Permit No. CUP 10 -01. 5. That the granting of Conditional Use Permit No. CUP 10 -01 will not adversely affect the comprehensive General Plan because a tutoring center is consistent with the General Plan Land Use Designation for the subject area. 6. That the conversion of existing facilities to a tutoring center qualifies as a Class 3 Categorical Exemption of the California Environmental Quality Act (CEQA) as a conversion of a small commercial structure per Section 15303(c) of the CEQA Guidelines. Furthermore, the use applied for will not have a substantial adverse impact on the environment, and based upon the record as a whole there is no evidence that the proposed project will have any potential for an adverse effect on wildlife resources or the habitat upon which wildlife depends. SECTION 3. That for the foregoing reasons this Commission grants Conditional Use Permit No. CUP 10 -01, for a tutoring center with a maximum of 80 students within 4,313 square -feet of existing office space on the second -floor of the commercial shopping center at 1135 W. Huntington Drive, subject to the following conditions: 1. There shall not be more than fifty (50) students and thirteen (13) faculty and staff members at any time on weekdays, and no more than eighty (80) students and thirteen (13) faculty and staff at any time on Saturday. The tutoring center shall be closed on Sunday. Students shall arrive and depart in accordance with the schedule proposed and approved for CUP 10 -01. 2 1813 2. Instruction shall be limited to Tuesday- Thursday, 3:30 p.m. to 7:30 p.m., Friday, 4:00 p.m. to 8:30 p.m., and Saturday 8:30 a.m. to 6:00 p.m., except for 8 weeks in summer and 2 weeks in winter when instruction will be limited to Monday- Friday, 8:30 a.m. to 6:30 p.m. and Saturday 8:30 a.m. to 6:00 p.m. 3. The use approved by CUP 10 -01 is limited to the proposed after school tutoring center and it shall be operated and maintained in a manner that is consistent with the proposal and plans submitted and approved for CUP 10 -01, subject to the satisfaction of the Development Services Director or designee. 4. Noncompliance with the plans, provisions and conditions of approval for CUP 10 -01 shall be grounds for immediate suspension or revocation of any approvals, which could result in the closing of the tutoring center. 5. All City requirements regarding disabled access and facilities, occupancy limits, building safety, emergency equipment, parking and site design, and water supply and irrigation systems are required to be complied with to the satisfaction of the Building Official, City Engineer, Community Development Administrator, Fire Marshal, and Public Works Services Director. 6. The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officers, employees or agents to attack, set aside, void, or annul any approval or condition of approval of the City of Arcadia concerning this project and /or land use decision, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and /or land use decision and the City 3 1813 shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. 7. Approval of CUP 10 -01 shall not take effect until the property owner(s), applicant, and business owner(s) /operator(s) have executed and filed the Acceptance Form available from the Development Services Department to indicate awareness and acceptance of these conditions of approval ATTEST: SECTION 4. The Secretary shall certify to the adoption of this Resolution. Passed, approved and adopted this 9th day of March, 2010. Secretary, Planning Commission APPROVED AS TO FORM: n. e Stephen P. Deitsch, City Attorney Chairman, Planning Commission 4 1813 RESOLUTION NO. 1814 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING TENTATIVE PARCEL MAP NO. TPM 09 -08 (71182) AND THE RENEWAL OF RESIDENTIAL- MOUNTAINOUS DEVELOPMENT PERMIT NO. RM 07 -01 FOR THE SUBDIVISION AND DEVELOPMENT OF AN APPROXIMATELY 90 -ACRE PROPERTY GENERALLY LOCATED NORTH OF THE TERMINUS OF VISTA AVENUE AND NORTH AND NORTHWEST OF CANYON ROAD. WHEREAS, on August 5, 2009, a Tentative Parcel Map application was filed by Mr. Hank Jong of EGL Associates, Inc. on behalf of Nevis Homes, Development Services Department Case No. TPM 09 -08, in conjunction with the renewal of a related Residential Mountainous Development Permit No. RM 07 -01 for the development of two new single family residences on an approximately 90 -acre property generally located north of the terminus of Vista Avenue and north and northwest of Canyon Road; and WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Section 21000 et seq. "CEQA and the State's CEQA Guidelines, the City of Arcadia prepared an Initial Study and determined that there is no substantial evidence that the approval of Tentative Parcel Map Application No. TPM 09 -08 (71182) and the renewal of Residential Mountainous Development Permit Application No. RM 07 -01 would result in a significant adverse effect on the environment with the incorporation of mitigation measures. Accordingly, a Mitigated Negative Declaration has been prepared and notice of that fact was given in the manner required by law; and WHEREAS, a duly noticed public hearing was held by the Planning Commission on February 23, 2010, at which time all interested persons were given full opportunity to be heard and to present evidence. NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF ARCADIA RESOLVES AS FOLLOWS: SECTION 1. That the factual data submitted by the Development Services Department in the attached report is true and correct. SECTION 2. This Commission finds: 1. That the granting of such Residential- Mountainous Development Permit will not result in any of the following: a. Excessive or unnecessary scarring of the natural terrain and landscape through grading or removal of vegetation; or b. Unnecessary alteration of a ridge or crestline; or c. Unnecessarily affect the view from neighboring sites; or d. Adversely affect existing development or retard future development in this zone; or -2- 1814 e. Be inconsistent with the provisions of Division 0 of Part 5 of Chapter 2 of Article IX of the Arcadia Municipal Code. 2. That the use applied for will not have a substantial adverse impact on the environment with the incorporation of mitigation measures, and that based upon the record as a whole, there is no evidence that the proposed project, if implemented in accordance with the attached Mitigation Monitoring and Reporting Program (MMRP) will have any potential for an adverse effect on wildlife resources or the habitat upon which the wildlife depends. SECTION 3. The Planning Commission hereby approves and adopts that certain Mitigation Monitoring and Reporting Program (MMRP) prepared for Tentative Parcel Map Application No. TPM 09 -08 (71182) and Residential- Mountainous Development Permit Application No. RM 07 -01. SECTION 4. That for the foregoing reasons this Commission approves Tentative Parcel Map No. TPM 09 -08 (71182) and the renewal of Residential Mountainous Development Permit No. RM 07 -01, for the subdivision and development of an approximately 90 -acre site generally located north of the terminus of Vista Avenue and north and northwest of Canyon Road, subject to the following conditions: -3- 1814 1. The applicant shall agree to and execute the Mitigation Monitoring and Reporting Program (MMRP) thereby agreeing to pay the City any applicable fees and expenses to implement the mitigation measures in the design, construction, and maintenance of the project. All mitigation measures shall effectively be conditions of approval. 2. An updated arborist report shall be submitted and shall have been approved by the Development Services Director prior to the issuance of a grading permit with renewal of Oak Tree Permit No. TR 08 -04. 3. All structures shall be sprinklered per the City of Arcadia Fire Department Single and Multi Family Dwelling Sprinkler Standard. 4. All structures shall comply with building regulations for the Wildland -Urban Interface area. 5. All landscaping within 30 feet of all structures shall be fire resistant and provided with means of irrigation. Landscaping within a distance of 30 to 100 feet of all structures shall be cleared of all dead and/or non -fire resistant vegetation. A detailed landscaping plan showing compliance with these requirements shall be provided upon building permit application. -4- 1814 6. A 36 -inch box oak tree shall be planted on each property in or adjacent to the right -of -way; the specific placements are to be determined by the Public Works Services Department. 7. All 11 items listed in the attached memorandum dated January 27, 2010 from the Public Works Services Department. 8. The applicant shall grant any easements deemed necessary by the City Engineer and/or Public Works Services Director for utility and/or public maintenance activities. 9. The truck haul route for graded earth material shall be as follows: South on Canyon Road to Elkins Avenue, west to Santa Anita Avenue, south to the 210 freeway, east to the 605 freeway, south to the 60 freeway, and east to the Puente Hills Landfill. Any alterations are to be approved by the City Engineer. 10. At least 48 hours prior to the commencement of grading activities, the applicant shall hand deliver written notification to all residents along the haul route between the point of activity and the 210 freeway, detailing the proposed construction staging plan, haul route and schedule, and other pertinent grading and construction information. 11. All City requirements regarding building safety, fire prevention, detection, suppression, emergency access, landscaping, water supply and -5- 1814 water facilities, trash reduction and recycling requirements, and NPDES measures shall be complied with to the satisfaction of the Building Official, Fire Marshal, Police Chief, Public Works Services Director and Development Services Director. Compliance with these requirements is to be determined by having fully detailed construction and grading plans submitted for plan check review and approval. 12. The applicant shall defend, indemnify, and hold harmless the City of Arcadia and its officers, employees, and agents from and against any claim, action, or proceeding against the City of Arcadia, its officers, employees or agents to attack, set aside, void, or annul any approval or condition of approval of the City of Arcadia concerning this project and/or land use decision, including but not limited to any approval or condition of approval of the City Council, Planning Commission, or City Staff, which action is brought within the time period provided for in Government Code Section 66499.37 or other provision of law applicable to this project or decision. The City shall promptly notify the applicant of any claim, action, or proceeding concerning the project and/or land use decision and the City shall cooperate fully in the defense of the matter. The City reserves the right, at its own option, to choose its own attorney to represent the City, its officers, employees, and agents in the defense of the matter. -6- 1814 13. Noncompliance with the plans, provisions and conditions of approval for TPM 09 -08 (071182), RM 07 -01, and any subsequent renewal of TR 08 -04 shall be grounds for immediate suspension and/or revocation of any approvals. 14. Approval of TPM 09 -08 (071182), RM 07 -01, and the subsequent Oak Tree Permit shall not take effect until the property owner, civil engineer, and applicant have executed and filed the Acceptance Form available from the Development Services Department to indicate awareness and acceptance of the conditions of approval, and that all conditions of approval shall be satisfied prior to final inspection and issuance of a Certificate of Occupancy for the residences. SECTION 5. The Secretary shall certify to the adoption of this Resolution. Passed, approved and adopted this 9th day of March, 2010. ATTEST: Secretary, Planning Commission APPROVED AS TO FORM: Set, P. 6-6,6€ Stephen P. Deitsch, City Attorney Chairman, Planning Commission 7- 1814 MINUTES ARCADIA PLANNING COMMISSION Tuesday, February 23, 2010, 7:00 P.M. Arcadia City Council Chambers The Planning Commission of the City of Arcadia met in regular session on Tuesday, February 23, 2010 at 7:00 p.m., in the Council Chambers of the City of Arcadia, at 240 W. Huntington Drive with Chairman PerriIle presiding. PLEDGE OF ALLEGIANCE ROLL CALL: PRESENT: Commissioners Baderian, Baerg, Beranek, Hsu and PerriIle ABSENT: None OTHERS ATTENDING Deputy Development Services Director /City Engineer, Phil Wray Community Development Administrator, Jim Kasama Senior Planner, Lisa Flores Associate Planner, Tom Li Assistant Planner, Tim Schwehr Senior Administrative Assistant, Billie Tone SUPPLEMENTAL INFORMATION FROM STAFF REGARDING AGENDA ITEMS A copy of an e-mail message from a resident in opposition to Item 3 and a revised operating schedule for the tutoring center in Item 2 were distributed to each Commissioner. TIME RESERVED FOR THOSE IN THE AUDIENCE WHO WISH TO ADDRESS THE PLANNING COMMISSION ON NON PUBLIC HEARING MATTERS Five minute time limit per person None PUBLIC HEARINGS 1. HOMEOWNERS' ASSOCIATION APPEAL NO. HOA 10 -01 1911 Alta Oaks Drive Dennis and Rowena Dureg (Homeowners) Paul and Sue Sivas (Appellants) Curtis and Beth Kerrick (Appellants) Tracy and Terry Totten (Appellants) Patricia Wood (Appellant) This is an appeal of the Highland Oaks Homeowners' Association's Architectural Design Review Board approval of a 1,026 square -foot, second -story addition to the existing 2,300 square -foot, one story residence. Senior Planner, Lisa Flores, presented the staff report. The Public Hearing was opened. Chairman Parrille asked if the homeowner, or anyone else who is in favor of the project would like to address the Commission. There were none. Chairman Parrille asked if anyone wanted to speak in favor of the appeal, that is, against the project. Mr. Curtis Kerrick said that he is the neighbor directly to the south of the project site. He said that he and his wife purchased their home because they were attracted to the open views and spacious character of the neighborhood. Mr. Kerrick pointed out that the neighborhood is made up of single -story, ranch style homes and he feels that the proposed second story addition will change the complexion of the area and diminish the pool of potential buyers of property in the neighborhood. Mrs. Beth Kerrick said that her family chose to purchase their home in this area because they loved the extensive landscaping with the homes nestled in among lots of greenery. She believes that the proposed addition to the neighbor's house will loom over her property and create a closed in feeling. Mrs. Kerrick said she is mainly concemed with the loss of the forest -like character of the neighborhood. Mr. Paul Sivas said he has lived to the south of the project site for about 35 years. He said that he can see the bottom of the Dureg chimney from his property; not the top as depicted in the diagram. He expressed his disappointment that one resident can impose his will on his neighbors, thus Changing the character of his neighbor's property. Chairman Parrille asked if anyone from the Homeowners' Association or Architectural Review Board wanted to speak on this item. Mr. Ralph Bicker, Chairman of the Architectural Review Board of the Highland Homeowners' Association, explained that in the past, he was advised by the City Attorney that the HOA did not have the authority to deny a project based on possible interference with another neighbor's view or because it was a two -story structure. He said he sympathized with the appellants, but felt that there was no justification for the HOA to deny the application. Mr. Bicker offered to answer any questions the Commissioners might have. Commissioner Beranek asked Mr. Bicker if he had been in the Sivas' backyard and if he could see the top or the bottom of the chimney. Mr. Bicker said that he had visited the Sivas' backyard and he felt that they would not see anything much below the eaves of the second story. Mr. Sivas presented a photo of the project site taken from his backyard. Chairman Parrille asked if anyone wanted to speak in rebuttal. PC MINUTES 2 -23-10 Page 2 Mr. Craig Stoddard, the architect for the owners, said that when he became aware of the objections to the project, he went to the Sivas' house and found that from the backyard, only the top of the chimney at the project site was visible over the existing hedge. He noted that his clients, the Duregs, offered to install another hedge in the Sivas' backyard. MOTION: It was moved by Commissioner Baderian, seconded by Commissioner Beranek, to close the Public Hearing. Without objection the motion was approved. Commissioner Beranek said that he read all the material provided and visited the neighborhood. While there, he saw several two-story houses. Therefore, he felt that as long as the applicants abide by all applicable regulations and there is no objection to the design pattern, there is no basis to approve the appeal. MOTION: It was moved by Commissioner Beranek, seconded by Commissioner Hsu to deny Homeowners' Association Appeal No. HOA 10 -01. ROLL CALL: AYES: Beranek, Hsu and Perri Ile NOES: Baderian and Baerg There is a five working day appeal period after the Planning Commission decision. Appeals to the City Council are to be filed by 5:30 p.m. on Wednesday, March 3, 2010. NOTE: At the request of the applicant, item 2 was moved to the end of the Public Hearings section of the agenda. 3. TENTATIVE PARCEL MAP NO. TPM 09-08 (71182) AND RESIDENTIAL MOUNTAINOUS PERMIT NO. RM 07 -01 This site is an approximately 90 -acre property generally located north of the terminus of Vista Avenue and north and northwest of Canyon Road extending east to the boundary of Wilderness Park. The area to be developed is on the west side of Canyon Road between 2109 and 2127 Canyon Road Hank Jong of EGL Associates, Inc. (Engineer) The applicant is requesting the Tentative Parcel Map for a two parcel subdivision and renewal of a Residential Mountainous Permit for the grading of proposed Parcels 1 and 2. Parcel 1 would be developed with a two -story, 5,490 square -foot residence, and Parcel 2 would be developed with a two-story, 5,110 square -foot residence. The grading to accommodate the proposed developments would involve approximately 5,000 cubic-yards of cut and 40 cubic -yards of fill. Associate Planner, Tom Li, presented the staff report. Commissioner Hsu asked if erosion was a concern on this project. Mr. Li said that it was taken into consideration when the grading plan was approved. PC MINUTES 2 -23-10 Page 3 Commissioner Hsu asked what safeguards would be taken to avoid landslides. City Engineer, Mr. Wray said that in accordance with the proposed plan, grading will only take place around the pad with retaining walls and drainage swales installed to protect the hillside. Commissioner Baderian asked if the increased truck traffic will have any significant impact on Santa Anita Avenue. Mr. Wray said that no significant impact is expected as Santa Anita Avenue is designed for heavy use. Commissioner Baderian asked if the restrictions could be applied to truck traffic near Highland Oaks School to avoid interfering with student pick up and drop off. Mr. Wray said that there are requirements in place to protect the student traffic. The public hearing was opened. Chairman Parrille asked if anyone wanted to speak in favor of the project. Mr. Hank Jong, the civil engineer for the project, said that the applicant is willing to comply with all conditions of approval and that he would be pleased to answer the Commissioners' questions. Commissioner Beranek asked if the two houses would be placed side by side or separated. Mr. Jong said that they would be separated. Chairman Parrille asked if anyone wanted to speak in opposition to the project. There were none. MOTION: It was moved by Commissioner Hsu, seconded by Commissioner Beranek, to close the Public Hearing. Without objection the motion was approved. Commissioner Baderian asked if the city still required a $200,000 non refundable deposit from the applicant for hillside maintenance. Mr. Kasama explained that the deposit is no longer required because the future property owners will be responsible for the maintenance of their property as is normally the case. Commissioner Baderian asked the Commissioners for their thoughts concerning truck movement up and down Santa Anita Avenue. Chairman Parrille agreed that measures should be taken to protect student traffic at Highland Oaks School. Mr. Kasama explained that mitigation measure 4.3 addresses this issue and would apply any time students are coming and going in the school area. He said that the wording would be amended to have the contractor accommodate the school's academic schedule. Commissioner Baderian recommended that restricted hours for heavy truck traffic should be coordinated with the school district calendar for Highland Oaks to avoid all times when students are traveling to and from school, including when minimum days and other events are scheduled. PC MINUTES 2 -23-10 Page 4 MOTION: It was moved by Commissioner Baderian, seconded by Commissioner Baerg to approve Tentative Parcel Map No. TPM 09 -08 (71182), renew Residential Mountainous Permit No. RM 07 -01 and adopt the Mitigated Negative Declaration, subject to the conditions in the staff report. ROLL CALL: AYES: Commissioners Baderian, Baerg, Beranek, Hsu, and Parrille NOES: None A Resolution reflecting the decision of the Planning Commission will be presented for adoption at the next Commission meeting. There will be a five working day appeal period after the adoption of the Resolution. 4. ZONE CHANGE NO. ZC 09 01 728 W. Huntington Dr. Charles Huang, Dexter Huntington, LLC The applicant is requesting to change the zone of the subject property from C -2 D (General Commercial with Design Overlay) to R -3 (Multiple Family) to make it consistent with the General Plan land use designation of Multiple Family Residential at a density of 24 dwelling units per acre. Senior Planner, Lisa Flores, presented the staff report. The Public Hearing was opened. Chairman Parrille asked if anyone wanted to speak in favor of the project. There were none. Chairman Parrille asked if anyone wanted to speak in opposition to the project. There were none. MOTION: It was moved by Commissioner Baderian, seconded by Commissioner Beranek, to close the Public Hearing. Without objection the motion was approved. MOTION: It was moved by Commissioner Baderian, seconded by Commissioner Hsu to convey a recommendation for approval to the City Council on Zone Change No. ZC 09 -01. ROLL CALL: AYES: Commissioners Baderian, Baerg, Beranek, Hsu, and Parrille NOES: None PC MINUTES 2 -23-10 Page 5 The Planning Commission's decision and comments will be forwarded for the City Council's consideration at a public hearing NOTE: At the request of the applicant, item 2 was moved to the end of the Public Hearings section of the agenda. 2. CONDITIONAL USE PERMIT NO. CUP 10 01 1135 W. Huntington Drive Elite of Arcadia, Inc. The applicant is requesting a Conditional Use Permit to operate a tutoring center with up to 80 students within 4,313 square -feet of existing office space on the second floor of an existing commercial shopping center. Assistant Planner, Tim Schwehr, presented the staff report. Commissioner Baderian asked if the parking requirements approved in 2002 included usage by Ralphs Market and other tenants in the center. Mr. Schwehr explained that the parking requirements for banks have been reduced since then but that the parking requirements in 2002 included usage by Ralphs, Power Prep Tutoring Center, the other retail businesses, and the two banks. Commissioner Baderian asked if parking would be impacted with the addition of this business. Mr. Schwehr said that the total requirement will remain 337 spaces so there will not be an impact. Commissioner Hsu asked Mr. Schwehr if he had visited the site and Mr. Schwehr explained that he had and that he found the parking lot to be very underutilized. In fact, he stated that Tess than half the spaces were in use. Mr. Kasama explained that the requirements for banks have changed over the years because they do not have as much walk -in traffic as in the past. The Public Hearing was opened. Chairman PerriIle asked if anyone wanted to speak in favor of the project. Ms. Karen Hwang, representing Elite of Arcadia, Inc., said that the applicant had no objections to the conditions of approval and offered to answer questions. Chairman Pamlle asked if anyone wanted to speak in opposition to the project. There were none. MOTION: It was moved by Commissioner Beranek, seconded by Commissioner Hsu, to close the Public Hearing. Without objection the motion was approved. PC MINUTES 2 -23-10 Page 6 MOTION: It was moved by Commissioner Baderian, seconded by Commissioner Hsu to approve Conditional Use Permit No. CUP 10 -01, subject to the conditions in the staff report. ROLL CALL: AYES: Commissioners Baderian, Baerg, Beranek, Hsu, and Perri Ile NOES: None A Resolution reflecting the decision of the Planning Commission will be presented for adoption at the next Commission meeting. There will be a five working day appeal period after the adoption of the Resolution. CONSENT ITEMS 5. MINUTES OF FEBRUARY 9, 2010 MOTION: It was moved by Commissioner Hsu seconded by Commissioner Baderian, to approve the minutes of February 9, 2010 as presented. Without objection the motion was approved. MATTERS FROM CITY COUNCIL AND PLANNING COMMISSION None MODIFICATION COMMITTEE MEETING ACTIONS Chairman PerriIle reported that two items were presented at the Modification Committee meeting today. MC 10 -02 was for reduced side yard setbacks to accommodate air conditioning equipment. This item was continued. The other item, MC 10 -03, was for legalization of an existing stairway to an attic. This item was referred to the Planning Commission. MATTERS FROM STAFF Ms. Kasama briefly reviewed the upcoming projects for consideration by the Commission on March 9 including a revocation of the Conditional Use Permit for Cafe Fusion, a Design Review for a building at Baldwin Plaza and the referral from the Modification Committee on legalization of the stairway attic. ADJOURNED 8:03 p.m. ATTEST: Secretary, Planning Commission Chairman, Planning Commission PC MINUTES 2 -23-10 Page 7